Intellectual property law is notoriously bad at keeping up with the technology it is supposed to govern, particularly where the Internet is concerned. As a result, business people (and the lawyers who advise them) must be especially careful to cover every possible contingency in agreements governing their online intellectual property or risk falling into the gaps in the protection offered by existing law. Recently, these issues have begun to surface in cases involving the ownership of social media content, which traditional intellectual property law struggles to address.
For example, Facebook updates and Twitter postings (Tweets) are generally too short to be subject to copyright—Tweets are limited to 140 characters of plain text and the copyright law generally does not protect short phrases or titles. But such postings are typically collected together in a “stream” that might be deemed a protectable compilation, and to the extent a posting contains protectable elements, such as photographs, New York courts have held that the creator retains rights in those elements, despite the fundamentally public and “shared” nature of the social media environment.1
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