“For as long as my Twitter feed is private,” tech billionaire Mark Cuban tweeted, “all original tweets are copyrighted and can’t be posted elsewhere without my permission.”
The outspoken owner of the Dallas Mavericks, who made his fortune selling Broadcast.com to Yahoo during the dot-com boom, purported that if he tweets while his Twitter account is set to private, they are somehow protected by copyright law. His tweets are now public again.
Sure, the Twitter terms of service does put forth, “You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours.” But Cuban’s “notice” is the rich cousin of those bullshit Facebook copyright statuses you see your most gullible friends post every couple years.
“Twitter can’t tell you whether or not you create or own a copyright — it doesn’t have the legal ability to do so. So if you own any copyrights, it’s not because of Twitter not owning them, it’s because the law provides for ownership of them which initially vests with you, the author,” intellectual property attorney Brock Shinen explained in a blog post.
Cuban has struggled with the idea of his social media posts being available for reporters for over seven years now. In 2009, he asked whether a tweet was copyrightable on his blog, which is called “Blog Maverick: The Mark Cuban Weblog.” He mused:
I got to thinking about this when I tweeted about an NBA game. I tweeted to the people who follow me. While I never asked that they not distribute it to other tweeters, i did not give anyone permission to republish my tweets in a commercial newspaper, magazine or website.
So when an ESPN.com or any other outlet republishes a tweet, have they violated copyright law?
No, is likely the answer. Shinen outlined many reasons why tweets aren’t practically copyrightable in his blog post — it really depends on the content of the tweet — demonstrating the complexity of American copyright law. One of the reasons you can’t copyright most tweets, he said, is because of Scenes a Faire. “For most authors (Tweeters included), we write things in a way that is common, or in a way that 100 other people might respond to the same scenario,” the intellectual property lawyer wrote. So let’s take Cuban’s tweet which claims his private Twitter feed is protected by copyright, for example. Many other users tweeted similar sentiments before Cuban:
Please stop being so remarkable if you'd rather I not make any remarks.
Re private twitter accounts, trademark copyright Creative Commons.
— chancerubbage (@chancerubbage) February 7, 2014
yes also like private space too keep things private too to respect people privacy also legal and copyright respects to twitter
— Becki Sauneuf (@sauneuf2016) January 4, 2016
Shinen asked at the end of his blog: “I guess the bigger question is what would you do even if you did own a Tweet?”
When you are rich, powerful, and public, the things you say can spread far and wide. It’s understandable, and a little frightening that the elite find new ways to keep a tight lid on their ideas — especially ones made in the very public arena of social media. We should be reading — and sometimes even writing about — Mark Cuban’s tweets because he is a powerful public figure. It’s in the public’s interest to know. Now, more than ever, we see how important tweets from those in power are: