Meghan McCain Breaking Copyright Law?

15 September 2009

Chances are, if you’ve ever been on any instant messaging service, you’ve seen somebody put up some lyrics as an away message or status message.  It’s there a for awhile, a few contacts see it, and that’s that.  But what about when someone tweets 140 characters worth of song lyrics?

mccain twitter clip

Let’s find an example from which we can work.  (clicking, scrolling, more clicking)  Ah yes, here we go, the perfect example.  A tweet from Meghan McCain earlier today.  Nearly the entire second verse from Queen’s “We Will Rock You.”  No quotes, no attribution.

The Copyright Rights

We already know the song is copyrighted.  Since we are dealing with song lyrics, it is most likely that the rights to the words are held by various collecting societies, each holding a license to the rights in their respective territories.  The question then is whether or not this 138 character quote of the lyrics constitutes infringement. 

To answer this question, we turn to Section 106 of the US Copyright Act.  [The rights granted to copyright owners in this section of the Act are very similar to rights bestowed by other copyright acts around the world thanks to our international treaties.]  The rights granted include: the right to make copies, the right to prepare derivative works, the right to publicly display or perform the work.

Copied

The song is so popular that there is no question as to whether or not the work was copied.  Despite the lack of quotation marks, most people would recognize the passage and know that Meghan McCain was not the originator of it.  The work was copied, typed out or cut and pasted into the Twitter box.

Displayed

The copied portion was then publicly displayed via Twitter.  It’d be hard to argue that this is not a public display of the lyrics.  Tweets from tweeters who do not protect their tweets are available on the web.  In addition to this, Ms. McCain has over 50,000 followers.   Even if her tweets were protected, 50,000 people, most of who do not know her personally, could hardly count as anything other than public.

Infringement

So one of the activities to which the copyright holder was given exclusive rights was done by someone without permission.  However, that does not mean that the tweet was infringing.  In the US, we need to see if the tweet might qualify as fair use.  In the UK, and other jurisdictions based on UK law, we need to see if the tweet includes a ‘substantial part’ of the original work.

Substantial Part?

Going first to the question of whether the tweet is a substantial part of “We Will Rock You.”  This Ipper (and a friendly tweeting Kat) happens to think it is.  “We Will Rock You is a very short song, clocking in at under two minutes.  It has only three verses and a two-line chorus.  The tweet contained almost the entirety of one verse, or somewhere between a third and a forth of the song.  Looking at it in a frame more apt to Twitter, the song has 666 characters, including the spaces.  The song contained 138 of these 666 characters, or roughly 20%.  That’s a pretty good sized chunk.  Adding into this equation that the copied section is highly recognizable, the tweet copies a substantial part of the original work.  Of course, as my copyright professor always liked to say, “reasonable people can disagree,” so you, or a judge, may find differently.

Fair Use

Now, about that fair use.  This Ipper happens to think this tweet would qualify as fair use in the US.  Although, as discussed above, it takes a substantial part of the work and the original work is a published commercial work, there is no apparent market harm and Ms. McCain is not using the tweet for any commercial purpose.  Additionally, the usual commercial arguments used for internet infringers is absence.  It also does not appear that  Twitter, unlike YouTube for example, is making any money from this tweet.  There are no ads on the side of the page.  Twitter does not get more money for each person that views the tweet.

Summary

In the US, a song-quoting tweet is probably protected by fair use and thus not an infringement.  However, in other jurisdictions, most of which do not have fair use, tweeting a substantial portion of a song’s lyrics is very likely copyright infringement.   Unfortunately, it doesn’t matter if the tweeter lives and tweets in the US, the tweet can infringe anywhere it is displayed, i.e. anywhere it’s seen. 

I doubt Meghan McCain intended any harm in her tweet.  Most likely she’s a fan of the song, it was in her head, and she wanted to share it.  Perhaps next time she should quote just a little less, not enough to be a substantial part.  Maybe also throw in some quotation marks for good measure; plagiarism isn’t much better than copyright infringement.

Comments

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Justen said...

So, is there anything to be said here for the revised and clarified TOS for Twitter? They came out recently and declared "you own your tweets!"

obviously, she may own the "tweet" if it is defined as a 140 character combination of letters, symbols, and numbers ... but doesn't own what that tweet is comprised of.

What if she posted, over the course of 5 tweets, the entirety of the song? If you applied Fair Use: do 5 tweets, which will only show up in another users tweetstream for a matter of minutes, constitute market competition with the likes of a licensed sike like 365lyrics.com? obviously she would have used a substantial amount of the song (all of it), and the purpose would be for entertainment, not education or news ...

Just some things I am considering at the end of this post.

October 8, 2009 at 2:32:00 PM PDT