From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Tuesday, 28 July 2015

Lifting jokes on Twitter: no laughing matter?

Following a breaking news tweet by Plagiarism is Bad (@PlagiarismBad), over the past couple of days several media have reported [eg hereherehere ...] that Twitter has begun to comply with DMCA takedown requests relating to tweets, notably jokes, lifted in their entirety from someone's own account and re-tweeted without any attribution as to their original author. 

An example is a tweet by freelance writer Olga Lexell (whose Twitter account is now private) - "saw someone spill their high end juice cleanse all over the sidewalk and now I know god is on my side" - which a number of Twitter users have republished without any attribution to her as the author of the original tweet. 

Ms Lexell decided to submit a DMCA takedown request. Apparently not just God, but also Twitter was on her side. The micro-blogging platform decided in fact to withhold the allegedly infringing tweets. However (and incidentally), as IPKat readers can see here there is still a number of tweets that reproduce her joke in its entirety.

Is there anything to be surprised about Twitter honouring this type of takedown requests? Possibly not. 

Not in Europe

From a EU perspective, a 140-character phrase may well be considered sufficiently original to be eligible for copyright protection [see here for a fairly recent controversy in France]

In its landmark decision in Infopaq [here] the Court of Justice of the European Union (CJEU) held in fact that a work or a part thereof (in the background proceedings before Danish courts what was at stake was an 11-word newspaper article extract) may be protected by copyright pursuant to the InfoSoc Directive provided that it is original, ie it is its author's own intellectual creation. 

The CJEU further elaborated upon the notion of 'author's own intellectual creation' in its subsequent decisions in BSA [here], FAPL [here], Painer [here], Football Dataco [here], and SAS [here]. Originality under EU law is thus to be understood as involving 'creative freedom' (FAPL), a 'personal touch' (Painer), and 'free and creative choices' (Football Dataco). 

Yes, also cats can tweet
Not in the US (?)

Things may prima facie appear more complex under US law [as was also discussed in a previous Katpost], on consideration that 37 CFR §202.1(a) among other things states that "short phrases such as names, titles, and slogans" are not eligible for copyright protection, "even if ... the short phrase is novel or distinctive or lends itself to a play on words." [see here at §313.4(C)]. However, as discussed here, there is case law that supports the view that statements which rely on brevity and simplicity, eg jokes (even those on Twitter), may well meet the required level of originality and (to borrow from the language used in the Compendium of US Copyright Offices practices) authorship, and be thus protected by copyright. 

Defences and moral rights

So, similarly to the EU context, also under US law the question about lifting a joke on Twitter would then become whether any defences could be available to alleged infringers. Would the fair use doctrine apply in such a context, considering that some of the Twitter accounts that engage systematically in tweet lifting do so for commercial reasons?

In any case, it is worth highlighting how, differently from the EU, under US law unattributed reproduction of a tweet would not raise any particular moral rights issues, either by means of potential infringement of the rights of attribution or (should a tweet be reproduced in an altered, derogatory version) integrity. 

Although Article 6bis of the Berne Convention mandates (some) moral rights protection and it may be arguable that attribution and integrity are protected in this country through a mix of federal and state laws (eg derivative rights, defamation, unfair competition, privacy), under US copyright law protection is in fact limited to "certain authors", as per §106A of the US Copyright Act. 

7 comments:

Embarrassed said...

I can understand the legal implications of this but what I can't understand is the joke: "saw someone spill their high end juice cleanse all over the sidewalk and now I know god is on my side"

Can someone explain it to me?

Roufousse T. Fairfly said...

I scratched my head about this one too. The needle on my Funny-O-meter hardly registered anything. Ditto for the creative litmus paper test.

It is probably to be interpreted as a manifestation of Schadenfreude. Someone was flouting an item of conspicuous consumption on the street, but in the end it was the gutter who ended up enjoying the "exclusive" fluid.

The jaded/annoyed/disgusted/envious observer then rejoiced.

Can one petition twitter to take down that pretty drab stuff altogether?

Meldrew said...

The Twitter experience is usually more copy trite than copyright..

Feel free to plagiarise. It may be original, but it's not much work.

Aaron Wood said...

Of course the risk is of independent creation.. which is more common than one might think (particularly where the joke is topical and pun-based).

Could this be why a lot of comedians are moving to story-based humour

Anonymous said...

Copyright is long - but very thin protection.

As Aaron points out, the risk of independent creation is a very real risk.

It is not the only risk either - as the recent Orphan works/Google debate has shown, at least in part, with the notion that "digitizing for preservation" with the capability of added keyword searching or other de minimus electronic capability insertions was deemed "transformative enough."

Roufousse T. Fairfly said...

Aaaarrrgghhh... Why did my brain ever secrete "flout" instead of "flaunt"?

But it made up by remembering a reference on the silver screen about stolen jokes.

So, IIRC:

In George Cukor's 1960 movie Let's make love Yves Montand is trying to seduce Marilyn Monroe, who is a performer in an off-Broadway revue.

To that end, he anonymously purchases an original joke from an author. The latter throws a fit when he happens to hear his work performed publicly by someone other than the purported buyer, believing it was stolen.

Returning to 2015: there was a fuss in Germany a few weeks ago.

Titanic Magazine, a publication somewhat comparable to Private Eye, accused the weekly faux-news broadcast Heute-Show, modeled after the Daily Show, of lifting gags out of its pages.

It produced a set of pictures opposing its own production to the alleged plagiarism.

The text states that the public broadcaster will be hearing from their lawyers during over summer. Whether they're serious remains to be seen.

The evidence adduced doesn't really convince me that this was plagiarism. I'm often amazed how cartoonists all over the world -- or in the same city -- independently manage to converge to the exact same jokes to comment unfolding events. Some of the Titanic gags are quite obvious in my opinion.

The ultimate example ("my first banana") in the series doesn't even try to conceal its original inspiration, which not unlike the famous drawing Dropping the pilot, spawned a few <a href="http://www.tageswoche.ch/images/cms-image-001517344.jpg</a>derivatives</a>.

The first gag in the series lampoons FIFA and Qatar. It appears that Titanic's own take wasn't all that original, as something in the same line had been broadcast months earlier.

The Heute-Show airs on Friday night, 24 or 48 hours after another satirical program, Extra3, is shown on a different public channel. One often seems to borrow from the other, and vice-versa. A certain performer even works on both.

When a politicko spectacularly thrusts his foot in his mouth, and you're working on a deadline, it must be difficult not to use the images in the obvious way. Real-time entertainment would be more like milk that can goes sour in a matter of hours than the twenty year old brandy of doctoral dissertations.

Anonymous said...

Hi there just wanted to give you a quick heads up and
let you know a few of the pictures aren't loading correctly.
I'm not sure why but I think its a linking issue.
I've tried it in two different web browsers and both show the same outcome.


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