Are tweets protected by copyright? Well, it would seem that under EU law – or rather CJEU understanding of EU law – the answer should be in the affirmative. In its 2009 decision in Infopaq, the court found that copyright may subsist in a text extract of 11 words and – more in general – it subsists whenever a work is its author's own intellectual creation.

As fans of all things EU copyright will know, the EU standard of originality has been subsequently defined further, and found to involve 'creative freedom', a 'personal touch', and 'free and creative choices'.

However, a BBC News article this week shows that this conclusion may not be so easy to reach, at least if one asks it from the perspective of US law.

What happened in this case?

On 4 January the New York Times featured an edited tweet by US film critic Anthony Oliver Scott to promote the Oscar-tipped Coen brothers movie Llewyn Davis.

According to Twitter's guidelines for using tweets in a different context, ie broadcast, editing third parties' tweets is only possible insofar as necessary due to technical or medium limitations (eg, removing hyperlinks)]

Scott's original tweet read: "You all keep fighting about Wolf of Wall St. and Am Hustle. I'm gonna listen to the Llewyn Davis album again. Fare thee well, my honeys."

The tweet published in the New York Times ad (which reportedly cost about $70,000) without Scott's permission read as follows: "I'm gonna listen to the Llewyn Davis album again. Fare thee well, my honies."

Apparently the edits were due to the rules of the Academy of Motion Picture Arts and Sciences, which does not allow pre-Oscars negative campaigning.

Besides being a potential case of false endorsement and violation of Twitter's terms (still according to Twitter's guidelines for using tweets in broadcast, Twitter content may not be used in advertisement without prior consent), the question which this is most interesting is whether Scott could claim copyright infringement in his tweet.

Under EU standards, it would seem that his tweet is sufficiently original for the sake of copyright protection, and unauthorised editing might be even considered a violation of Scott's moral right of integrity.

However, what would happen in a US court, should Scott decide (hypothetically) to sue (presumably) the advertisers for copyright infringement? Would his tweet be considered sufficiently original? If so, would the defendant(s) be found liable of copyright infringement? Could fair use be successfully invoked?

Although the US Copyright Act refers to the requirement of originality, and the seminal decision of the US Supreme Court in Feist rejected the 'sweat of the brow' approach, I have personally been surprised to hear eminent US copyright scholars holding the view that, at the end of the day, the standard of originality under US law is so minimal to be (almost) neglectable…

What do US readers think?

This article first appeared on the IPKat blog, which covers copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. Click here to follow IPKat on Twitter, and click here to follow Eleonora.