Posts Tagged ‘Copyright’

ACTA: The Little International “Anti-Counterfeiting” Treaty That is Scaring the Pants Off People Everywhere

Posted on June 3rd, 2010 • Filed under Uncategorized • 1 Comment

The Anti-Counterfeiting Trade Agreement (ACTA) is a new international treaty supposedly targeted at counterfeiters. However, supporters of liberalization of copyright law have been expressing serious concern that ACTA has become another vehicle for BigCopyright (Disney and its ilk) to impose more stringent copyright restrictions on the United States, among other countries. It doesn’t help that the ACTA drafting process has been secret, and a draft was just released to the public in April, after a significant period of negotiation.

The Electronic Frontier Foundation has been expressing alarm about ACTA for years. Meanwhile, President Obama has repeatedly stated his support for ACTA.

This past week, Ray Dowd at the Copyright Litigation Blog read the text of ACTA and had this to say: “I thought that I would find the concerns I’d seen floating around the internet to be a little overblown. In fact, I think that the concerns of the EFF are understated. . . . [T]he text appears to be so one-sided as to appear to have been spoonfed by certain aggressive Hollywood rights-holders who don’t think anyone can make fun of Mickey Mouse and that anyone crossing a border should be frisked for a fake Louis Vuitton handbag.”

Similarly, Techdirt says that while the ACTA draft does not codify the “three strikes” approach (read: banning repeat infringers from the Internet entirely) being bandied about in European countries, including the UK, the draft apparently states that Internet service providers must have policies to deal with infringing works in order to have access to “safe harbor” protection under ACTA, and the given example of such a policy is termination of repeat infringers – the foundation of the “three strikes” approach.

Additionally, Techdirt reports that the ACTA draft would export the sort of notice-and-takedown regime, part of the safe harbor provisions already codified in US copyright law in the Digital Millennium Copyright Act, to the rest of the world, despite the fact that these provisions allow action against alleged infringers without proof of actual infringement, and are widely abused in practice.

One more reason to worry about ACTA: Andrew Moshirnia of the Citizen Media Law Project reports that the EU has proposed adding third-party criminal liability to ACTA. In other words, parties who aren’t themselves infringers but who engage in acts of “inciting, abetting and aiding” infringement might be subject to criminal penalties. Moshirnia says:

First off, this seems to criminalize most Internet . . . everything. . . . Second, this would clearly change United States law, something that the supporters of ACTA have claimed that the agreement would not do. . . . Third, introducing criminal penalties to a volatile field like intellectual property is a recipe for disaster.

Are you nervous yet?

Image: The above photo is a 2005 shot from Flickr user bsdfm, who writes: “The label reads: =if(Label=”",”RMA”,”?”) This is an Excel function. It also would work in Microsoft Access. The factory is using Excel or Access to store all the logos for the different jeans they make and then print them onto leather. This is what happens when there is a bug in their software. Chatuchak market, Krung Thep, Bangkok, Thailand.”

 

Timbaland Shells Out for “Spazz” Sample; More Copyright News

Posted on May 28th, 2010 • Filed under Uncategorized • 1 Comment

Timbaland just settled a copyright infringement lawsuit alleging unauthorized use of a sample of 1960s garage band the Elastik Band (pictured)’s “Spazz.” Did you know the 2007 controversy over Timbaland’s alleged misappropriation of a Scandinavian chiptune artist’s work has its own Wikipedia page?

In 2013, copyright holders will begin to be able to exercise their rights to cancel assignments of rights under the 1976 Copyright Act. Music labels have been quietly gritting their teeth about this for years now, and the industry’s anxiety level is only going to increase.

Yahoo, Facebook and eBay are all on Youtube’s side in its court battle with Viacom. In related news, court documents reveal that the two nearly settled all infringement claims through a licensing deal which would have netted Viacom close to $600 million; Viacom pushed for $700 million and the deal fell apart.

Why do politicians keep using unlicensed music in their commercials? Arguably, because such uses amount to fair use, given that they’re supposedly non-commercial. Of course, it could also be because political commercials don’t run for very long and they think they won’t be caught. What do you think?

 

Media and Copyright Law News Roundup

Posted on May 20th, 2010 • Filed under Uncategorized • No Comments

Righthaven LLC, the holding company which has been obtaining the copyrights to Las Vegas Review-Journal articles and suing alleged infringers, just filed its fourteenth copyright infringement suit, this time against a sports betting website, for reprinting Review-Journal articles without permission.

Lawyers for the Associated Press argue in the National Law Journal that the holding in Barclays Capital Inc. v. Theflyonthewall.com, No. 06 Civ. 4908, 2010 WL 1005160 (S.D.N.Y. March 18, 2010), a recent case in which the U.S. District Court for the Southern District of New York held that news organizations have a duty to police against appropriation of their reporting in order to recover under the “hot news” theory of infringement, unwisely undermines newsgathering incentives.  (The “hot news” doctrine is a sort of cousin of copyright which allows gatherers of time-sensitive information to prevent competitors from free-riding on their labor.)

Wired reports that copyright lawsuits plunged nationwide in 2009, after the RIAA’s abandonment of its “sue ‘em all” litigation strategy, which it pursued from 2005 to 2008.

 

Blogging the Law.Gov Conference at Duke Law: Should the Law be Open Source?

Posted on April 28th, 2010 • Filed under Uncategorized • 2 Comments

Scholars and advocates met today at Duke Law School to discuss the future of “Law.gov,” a proposed system that would provide open access to all primary legal materials in the US (statutes, codes, judicial opinions and more) through a centralized registry and repository.

The workshop, hosted by Duke Law’s Center for the Study for the Public Domain, discussed the many legal and practical issues raised by the possibility of increased public access to legal materials, such as potential savings to the federal government, intellectual property issues in the creation of the repository, looming privacy concerns regarding data in the repository, and the challenge of maintaining accuracy and authenticity across the provided materials.

Duke Law is providing a streaming webcast of the conference and invites you to tune in. You can also follow posts about the conference on Twitter by searching for the hashtag #lawgov.

10 AM – James Boyle, William Neal Reynolds Professor of Law, Duke University School of Law – Prof. Boyle opens the conference by opining that the law is the original open source effort, and that openness is a fundamental tenet of the legal system. (Info courtesy @carlmalamud)

10:30 AM – Richard Danner, Senior Associate Dean for Information Services, Duke University School of Law - Dean Danner provides a history of efforts to provide digital access to scholarly and legal materials (PACER, the Cornell Legal Information Institute, etc.) He notes that we must prepare for a future where libraries will no longer host physical repositories of authoritative legal sources. He notes that the primary issues for librarians in assembling a digital repository of legal materials include authentication, preservation, and authenticity. As he puts it, “Where did Google Scholar get those cases, anyway?”

11 AM – David Levi, Dean and Professor of Law, Duke University School of Law – Dean Levi, former Chief U.S. District Judge for the Eastern District of California, discussed judicial concerns about public accessibility of judicial records. He explained that in the past, judges had specified that many opinions remain unpublished due to various concerns including deficiencies in the trial record or briefing, and have been unhappy to see such opinions available in Westlaw or other services — a concern which may intensify if public access widens. Dean Levi reviewed a wide range of materials often found in court filings to which interested parties might wish to restrict access due to the presence of sensitive information: amnesty claims, other immigration documents, trade secrets, plea bargains. Any open access system will have to take these concerns into account. He concluded by saying, “If the eyes of the world are on every case . . . it can distort outcomes.”

11:30 AM – Carl Malamud, President and Founder, Public.Resource.Org – Malamud, the former Chief Technology Officer at the Center for American Progress, is the president and founder of Public.Resource.Org, an extensive collection of public domain legal materials. Malamud stated that justice, democracy and innovation are all furthered by open access to legal materials. He noted that there are many obstacles to open access at present: eight states continue to assert copyright interests in their own statutes, and a license to utilize the full text of the federal patent database, “the only [repository of this kind of information] mentioned by the Founding Fathers,” costs $39,000 (see Malamud’s letter to Vivek Kundra, Chief Information Officer of the U.S., for more background).

1:30 PM – Jennifer Jenkins, Director, Center for the Study of the Public Domain and Senior Lecturing Fellow, Duke University School of Law – Prof. Jenkins provided a comprehensive review of copyright issues with regard to state law. Federal legal materials are explicitly exempted from the Copyright Act, but state legal materials are not. Courts have repeatedly held that the law is not copyrightable, either because public need trumps copyright interests or because public legal materials (state laws, etc) do not contain the kind of interest with which copyright concerns itself — they are mostly compilations of facts and ideas and are not distinguished by creativity or individual expression. Nonetheless, certain states (Jenkins used Oregon as an example) have continued to insist that their state laws are protected by copyright.

2 PM – Erika Wayne, Deputy Director of the Law Library and Lecturer in Law, Stanford Law School – Wayne discussed the “National Inventory of Legal Materials” project and outlined the difficulties the project had encountered simply attempting to acquire the necessary source materials. For instance, of 540 municipalities/counties in California, 80% have outsourced the printing of their laws and codes to four publishers. Almost all of the information in question was available free online, but 40% of the sites where it is provided claim to be unofficial and provide disclaimers, and 50% have copyright assertions in the laws and codes. She noted that finding out how to acquire or license this data–sometimes merely trying to purchase a copy of a particular municipality’s codes–is often complicated, time-consuming, and expensive.

2:30 PM – David Ferreiro, Archivist of the United States – Ferreiro outlined the U.S. Archives’ efforts to move federal records, including the Federal Register and the Code of Federal Regulations, online and make them more accessible. He described new applications of this source material, such as FedThread.org, a Web tool to search and annotate the rules and proposed rules contained in the Federal Register.

3 PM – Andrew McLaughlin, Deputy Chief Technology Officer, Internet Policy, Executive Office of the President – McLaughlin described the executive office’s efforts to move more data online for public consumption. He noted that one virtue of the traditional culture of federal government agencies is a high level of concern with data quality. He noted that the executive has been pushing agencies to publish data sooner, and that it would be useful to be able to signal the degree of confidence in the data, perhaps through metadata. He outlined potential future uses of government and/or public data, such as aggregation of home energy use data to figure out how to reduce energy consumption.

 

Hidden Licenses and Tracking Beacons: The AP’s New News Technology

Posted on April 23rd, 2010 • Filed under Uncategorized • 6 Comments

Today we feature a guest post by Peter Richman, who is a Beasley Scholar studying Internet and media law at Temple University Beasley School of Law. He is currently spending a semester abroad in Tel Aviv.

In the last ten years, the news industry has been turned on its head. The turmoil is everywhere – the Times cutting costs, dailies shutting down, blogs springing up. My favorite tally of the carnage/symbol of the times is the idiosyncratic Newspaper Death Watch, publishing vet Paul Gillin’s online column recording the “decline of newspapers and rebirth of journalism.” Gillin puts the news industry in a gray area between models, and that’s where we’ve been for a few years – somewhere between decline and rebirth.

To make sense of the flux, we need look no further than the words of The Joker – “If you’re good at something, never do it for free.” But at the turn of the century, when news publishers first launched websites, they did do it for free – they gave away their content and kickstarted the new millennium’s race to the bottom. The increased consumer access was matched step for step by increased publisher headaches. Circulation plummeted. Blogs took off. Classifieds moved online. The traditional revenue streams dried up and now, ten years later, news publishers are scrambling to stay afloat.

The industry has responded with a few ideas recently - charging for access to content, moving towards hyperlocal news. No single push is going to correct this tectonic shift but one particular proposal that has gained traction of late is the Associated Press (“AP”)’s plan to control the distribution of its news by wrapping content in an hNews microformat.

The hNews microformat is metadata embedded in a news article with two noteworthy features – 1) a licensing framework, and 2) a tracking beacon. The framework sets the legal terms and conditions for using the article. The AP has been tight-lipped about what, exactly, it plans to do with this framework, leaving open scenarios as benign as restating its copyright to as severe as stipulating that simply reading an article means you give up your fair use rights. But what is legally significant here is not so much the specific terms of the framework as the very fact that the AP is trying to control its content by binding its readers to a contract.

Maybe you’re thinking, “But isn’t this the Internet? How can they stop me?” And that’s where the second part of the hNews microformat comes in. The tracking beacon uses a technology called Attributor to track the content as it makes its way around the web. Attributor assigns a digital “fingerprint” to content and then crawls the web for relevant matches. What’s really neat about this technology is its ability to flag matches based on context and thus distinguish between authorized and unauthorized uses.

So what does this all mean?

Let’s say you’re a tech-savvy high school teacher who posts an AP story to your class’s website. Let’s say the AP embedded a license in the story stipulating that by reading the article, you forfeit all fair use rights to AP content. Let’s say the tracking beacon finds your website and the AP notifies you that you have violated your licensing agreement.

What happens next?

You probably say, “What licensing agreement? I didn’t agree to this!” and that cuts to the heart of the issue – can the AP enforce this metadata license against its readers?

It is fundamental contract law that 1) an enforceable contract requires the assent of both parties and 2) a party can manifest its assent by its conduct. In other words, if you know about the terms of a contract and act in a way that would signal your assent, you’ve assented.

Throughout the case law, the turning point here is notice – what constitutes adequate notice of the terms of a contract? What do AP readers need to do know in order to be bound by the license? The easy answer is an overt manifestation of assent, e.g. clicking an “I agree to be bound by this license” button, but the courts are willing to accept less. In the landmark online contracting case Specht v. Netscape Communications Corp., 150 F. Supp. 2d 585 (S.D.N.Y. 2001), the Southern District of New York suggested that a contract may indeed be enforced without explicit assent. If the terms are displayed prominently enough, with the right language, we can assume that a user who continues to use the licensed material has implicitly manifested his assent.

But the notice required for this implicit assent is a far cry from the licenses the AP is proposing. Under the hNews microformat, it’s difficult to imagine any scenario where an ordinary reader would have adequate notice of the terms. The license is embedded in the article’s metadata, hidden by our browsers, invisible to the Internet most users inhabit. The AP is free to to restrict use of its content as tightly as it wants – charge for access, publish less content. But if it chooses to do so through contracts, by restricting users’ behavior, it must give the users a chance to say no.

***

For more information about the AP’s proposal, see the AP internal memo “Protect, Point, Pay — An Associated Press Plan for Reclaiming News Content Online” at the Nieman Journalism Lab.

For a technical overview of the hNews microformat, see the hNews wiki.

For more commentary on the state of the newspaper industry, see Goodbye to Newspapers? by Russell Baker in The New York Review of Books and Chris Anderson on the ‘freemium’ model in Wired Magazine.

Editor’s Note: For a really funny détournement of the AP graphic accompanying this article, go here. (RA)

 

Get it in Writing!

Posted on April 20th, 2010 • Filed under Uncategorized • 2 Comments

Intellectual property litigation is an extremely tough nut to crack.  If ever you consult an attorney for a copyright infringement suit and he tells you that he’ll definitely win the case for you, kindly thank him, pack your bags, walk out, rip his business card up and run far far away.  IP infringement suits are, at best, a coin flip in federal court.  There are a staggering amount of procedural and factual hurdles involved with successfully litigating an IP claim, often coming down to who has the better paper trail.  Florida photographer Todd Latimer is presently learning this the hard way, as his suit against motorcycle manufacturer Kawasaki and magazine publisher Hachette works its way from the U.S. District Court for the Middle District of Florida to the U.S. Court of Appeals for the Eleventh Circuit and back again.

As Photo District News’s PDNPulse blog expains, the case stems from a handshake agreement between Latimer and a Florida motorcycle shop named Roaring Toyz.  The  shop was tasked with customizing two pre-release Kawasaki motorcycles for debut at an upcoming trade show.  Kawasaki requested photos of the bikes for a pre-show press conference.  When Kawasaki expressed its discontent with digicam snaps taken by shop employees, the shop called Latimer for a last minute gig shooting the bikes.  Latimer got the shoot done overnight. The photos were shipped to Vegas and distributed in the press release’s press packet and subsequently ended up in an issue of Hachette’s Cycle World magazine.  Latimer sued, claiming that the shop had commissioned him for a poster that Kawasaki would display at the trade show, and not for magazine or press pack use.  Roaring Toyz, of course, says otherwise.

Here’s where the fun begins.  Since no written contract existed and the few emails that exist were vague at best, the District Court threw out Latimer’s claims on the grounds that he had given an implied license to Kawasaki and that Hachette’s images, in light of the license, were fair use.

What?  Seriously?  Really?

Latimer never dealt with Kawasaki directly, so to award Kawasaki a blanket license for use and further licensing of Latimer’s photos based on a handshake with a third party is kind of absurd.  The Eleventh Circuit agreed, holding that while a license was granted to Kawasaki, a jury trial is required to discern just what scope that license entailed.  As for fair use, the District Court awarded summary judgment without Hachette even raising a fair use defense.  Fair use is an extremely complicated affirmative defense on which the burden of proof rests with the party claiming the defense.  Generally, if the defense isn’t raised, it’s considered waived.  Apparently not in Florida though.  The Eleventh Circuit remanded, however.

The bottom line is, get your agreements in writing.  While it’s most prudent to go through the motions and see your attorney and get a proper contract written up, a simple email confirming the terms of your freelance gig can save you from a world of trouble down the line.  Misunderstandings are more common than any of us want to admit, and it doesn’t take a ton of work to cover your rear end in the grand scheme.

 

How to Make a Movie Called “Copyright Criminals” Without Going to Copyright Jail

Posted on April 8th, 2010 • Filed under Uncategorized • 1 Comment

Back in January, prior to its debut on PBS, I wrote about a new documentary called “Copyright Criminals,” which I had seen at the Future of Music Policy Summit in October 2009. “Copyright Criminals” examines the moral, creative and legal dimensions of sampling, focusing in particular on the ways that legal restraints on sampling have altered the course of hip-hop. Those of you who are big hip-hop fans or copyright mavens may already be familiar with the issues the film addresses, but it’s a great introduction for everyone else.

The film’s soundtrack, which serves to illustrate the issues at hand, is a melange of samples of familiar songs, chopped up and reconstituted in classic hip-hop fashion — the Beatles clashing with the Stones over James Brown loops, for example. We’re not talking about library records, we’re talking songs that would be supremely expensive to clear if clearance were even possible. After the screening, I asked co-producer Kembrew McLeod and his partner, Benjamin Franzen, how they tackled the legal issues surrounding the film’s extensive use of samples. They answered that they had carefully plotted a legal strategy in advance, repeatedly consulting a copyright attorney with regard to fair use of the sampled material and hewing to the guidelines of the Documentary Filmmakers Statement of Best Practices in Fair Use, a publication of the Center for Social Media.

In his new article in the Atlantic, “How to Make a Documentary About Sampling — Legally,” McLeod explains at greater length the difficulty of creating a film like “Copyright Criminals” while staying within the bounds of current copyright law. The filmmakers encountered many obstacles to licensing particular songs, including flat-out refusals. In at least one case, a single rights holder derailed a clearance that several other rights holders were willing to approve. The lack of case law on the boundaries of fair use created extra stress for the filmmakers, who feared the statutory penalties for copyright infringement, which can reach $150,000 per infringing act.

Nonetheless, McLeod and Franzen pressed on with their project, and we are the lucky beneficiaries of their efforts. “Copyright Criminals” is an entertaining and edifying film.

Thanks to Puja Patel of the Village Voice’s Sound of the City blog for forwarding us McLeod’s article.

Upstate New York readers: If you’re interested in sampling issues and in the Syracuse, NY area this Friday, April 9, Syracuse University is hosting a conference called the REPLAY Sound Sampling Symposium. Panelists will include Hank Shocklee of Public Enemy and William Patry of Google. The program will also be Webcasted. Visit http://sampling.syr.edu for more information.

 

Burlesque Law News, Part I: Pussycat Dolls Tribute Acts Take Copyright and Trademark Dispute to Court

Posted on April 5th, 2010 • Filed under Uncategorized • 2 Comments

In burlesque-law news, a Seattle woman, Kristen Colliander, has sued her former employer, Goldberg Entertainment Inc., for whom she claims she created and developed “The Angels: A Pussycat Dolls Tribute.” (For those of you unfamiliar with mid-2000s pop-dance music, the Pussycat Dolls, per Wikipedia, are “an American pop girl group and dance ensemble founded by choreographer Robin Antin in 1995 as a burlesque troupe.”)

Colliander and Goldberg parted ways and are now competitors. Goldberg has continued to use the name “The Angels” for its PCD tribute act. Colliander, nonplussed, alleges that she holds a common-law trademark in the word “Angels” for the show, and that Goldberg is infringing not only upon that trademark, but upon her copyright in various promotional materials and on the “unique pseudonyms, images and likeness [sic]” allegedly created by Colliander for “The Angels.” She also alleges Lanham Act violations and violation of Washington’s right of publicity statute. We’ve made Colliander’s complaint available here. (Read more about the case at Seattle Trademark Lawyer and at Property, intangible.)

I’ve never looked into legal issues surrounding tribute acts, but asserting one’s intellectual property rights in material created in the process of performing another group’s songs while dressed up like that group is courageous, to say the least. However, there are indeed some distinct similarities in the two groups’ promotional material that might support Colliander’s allegations.

Colliander’s current PCD tribute group, the “Pussycat Angels,” is featured here on the website of Titan Entertainment. Goldberg Entertainment’s website advertises the Colliander-less “Angels” here.

A glance at both pages (see above) reveals that the “Pussycat Angels” and “Angels” logos are basically identical. The complaint alleges only common-law copyright infringement in what it describes as “Plaintiff’s ‘Angels’ common-law trademark” (see Complaint, p. 7.). However, the complaint doesn’t distinguish between a mark in the common word “Angels” and the more distinctive “Angels” logo used by both acts. Assuming Colliander created the “Angels” logo, a comparison of the logos at the very least suggests something is awry. (Additional trademark or unfair competition analysis would require information not provided in the complaint, such as whether Colliander has any evidence supporting a finding of a likelihood of confusion, or actual confusion, between the two groups due to the similarity of the marks.)

Additionally, Goldberg’s “Angels” are advertised as “[o]ne part dance. One part vocal chops. Mix well with personality plus, sexy costumes, and a band that rocks the house.” Colliander’s “Pussycat Angels” are advertised as, you guessed it, “[o]ne part dance. One part vocal chops. Mix well with personality plus, sexy costumes, and a band that rocks the house.”

If Colliander wrote the advertising copy, her copyright infringement claims might well survive a motion to dismiss. I would expect Goldberg Entertainment’s defense to focus on the extent to which there is evidence that, because Colliander was a Goldberg employee, her efforts were work for hire and therefore the property of Goldberg, not Colliander.

We’ll be bringing you more burlesque law news shortly. No, I am not kidding.

 

More on Copyright Protection for Tweets and Other Short Phrases

Posted on February 27th, 2010 • Filed under Uncategorized • 2 Comments

In researching my post entitled “Can You Copyright Your Tweets?” I came across some great articles debating the protectability of short phrases.

William Bonk writes on “Tweet Copyrightability” and concludes, “If the product of data and professional analysis, then copyrightability is likely. Otherwise, the tweet must exhibit increasing creativity with decreasing length.”

Consuelo Reinberg writes in “Are Tweets Copyright-Protected?” that “[m]ost experts agree the response should not be an all-or-nothing answer, but rather ‘it depends.’  While most tweets would not pass the ‘copyrightability’ test, some might meet the minimum amount of originality demanded by copyright law.”

William Patry discusses “Jokes and Copyright,” in which he reveals that comedians often enforce their own moral rights in jokes in sub rosa ways, and identifies Robin Wiliams and Carlos Mencia as inveterate joke thieves.

David Giacalone opines on “Haiku and the Fair Use Doctrine.”

 

Can You Copyright Your Tweets?

Posted on February 26th, 2010 • Filed under Uncategorized • 3 Comments

Ross Grady (@rossgrady) just alerted me to a blog post by graphic designer Jeffrey Zeldman that’s generating discussion on Twitter today. Zeldman assures his readers that they don’t need to worry about copyright issues with regard to Twitter because tweets, as “short phrases,” can’t be copyrighted. If you have a really good one, you can trademark it, but otherwise, “they are in the public domain the instant you publish them,” because “your Tweets are like the air. Anyone can do anything like to them, including quoting them with or without your permission.”

This is bracing advice! Of course, it’s also completely wrong.

Zeldman’s post relies heavily on a circular from the Copyright Office entitled “Copyright Protection Not Available for Names, Titles or Short Phrases.” The circular explains that “[u]nder section 102 of the Copyright Act (title 17 of the U. S. Code), copyright protection extends only to ‘original works of authorship.’ The statute states clearly that ideas and concepts cannot be protected by copyright. To be protected by copyright, a work must contain a certain minimum amount of authorship in the form of original literary, musical, pictorial, or graphic expression. Names, titles, and other short phrases do not meet these requirements.”

If Zeldman had read a little more closely, he would have seen that the Copyright Office is explaining that short phrases in the manner of names and titles are not copyrightable, not all short phrases.

What the Copyright Office is hoping to get across to the thousands of people who send in copyright applications each year is that you cannot copyright, say, the name of a book or a movie. You have to trademark it, because the name alone isn’t a freestanding work of original expression, it’s a means of distinguishing that work in the marketplace, which is a function protected by the issuance of a trademark.

The Copyright Office is also trying to keep people from attempting to register copyrights in, say, movie pitches – “astronaut falls in love with robot.” There’s not enough original expression in that sentence — it’s just an idea written down, and you can’t copyright ideas.

If you write an original and distinctive twelve-word poem about an astronaut falling in love with a robot, however, there may be protectible expression in that poem despite its brevity. As Richard Stim explains in “I May Not Be Perfect but Parts of Me Are Excellent: Copyright in Short Phrases,” copyright protection of short phrases is disfavored, but it is available in certain circumstances where the short phrase demonstrates originality and distinctiveness. For instance, as one of Zeldman’s commenters pointed out, the epigrammatist Ashleigh Brilliant successfully sued to prevent a t-shirt transfer company from appropriating two of his epigrams. The epigrams were twelve and fifteen words, respectively (one of them became the title of Stim’s article). The court found that the phrases were entitled to copyright protection despite their brevity because of their distinctiveness and cleverness. The case is Brilliant v. W.B. Productions, Inc. Civ. No. 79-1893-WMB (S.D. Cal Oct. 22, 1979).

Zeldman’s statement regarding trademarking short phrases — “If you write a clever Tweet and wish to assert ownership (and if money is no object), you may apply for a trademark” – also misreads the Copyright Office circular, which explains that “[s]ome brand names, trade names, slogans, and phrases may be entitled to protection under laws relating to unfair competition, or they may be entitled to protection and registration under the provisions of state or federal trademark laws. The federal trademark statute covers trademarks and service marks—words, phrases, symbols, or designs that distinguish the goods or services of one party from those of another.”

Here, the key phrase is “distinguish . . . goods and services.” As noted above, trademarks distinguish goods and services. A “clever tweet” that is not used to distinguish goods and services in the marketplace is not amenable to trademark registration. For instance, the phrase “life is good” is not eligible for copyright protection, but when it is combined with a stick figure strumming an acoustic guitar with its dog at a campsite and slapped on a whole line of products, it becomes a means of distinguishing that particular line of products, and thus may be registered as a trademark.

Zeldman’s post is full of other confident misstatements of copyright law, such as, “[y]ou needn’t ask for permission to quote me. This is covered under fair use. You will not break any copyright law in quoting a short excerpt. This is covered under fair use.” In fact, I direct Mr. Zeldman to the case of Harper & Row v. Nation Enterprises, in which the United States Supreme Court found that republishing even brief verbatim quotes can amount to infringement under certain circumstances.

Twitter has largely avoided copyright disputes among its users by creating its own attribution and licensing convention, the retweet, which essentially supplants copyright in the Twitterverse. The functionality of this alternative system is proof that copyright law has not caught up with the reality of the Internet. However, it doesn’t mean that copyright law doesn’t apply to the Twitterverse. As always, it lurks in the background wherever people are creating reproducible works of expression.