“Otherwise, your Tweets are like the air. Anyone can do anything like to them, including quoting them with or without your permission. If an enterprising company wants to take something you said on Twitter and slap it on a tee shirt, they may do so. If a gent of the disturbed persuasion wants to engrave your tweet into a 600-foot swastika, he may do so.”
Breathe easy because Zeldman is wrong. If courts follow precedent, tweets are protected by copyright.
Lawyer Richard Stim writes at Stanford University:
Whether you can stop someone else from using your literary phrases is dependent upon the uniqueness and value of the phrases as well as the way in which you (and the borrower) use them.
One example of the higher degree of creativity necessary for copyright protection is evidenced by Ashleigh Brilliant, the author of literary phrases sold on postcards and merchandise…. In a 1979 case, a company copied two of Brilliant’s phrases-“I may not be totally perfect, but parts of me are excellent” and “I have abandoned my search for truth and am now looking for a good fantasy”-and altered a third phrase, all for sale on t-shirt transfers. The district court acknowledged that the phrases were distinguished by conciseness, cleverness, and a pointed observation, and ruled that they were protected by copyright.
In analyzing the fair use defense when short phrases are borrowed, a court will aggregate the phrases and weigh the value of the phrases in relation to the work. Or, put another way, are the phrases the heart of the work? The more important the phrases are to the work, the harder it often is to win a fair use battle.
(Zeldman, what’s up with writing a strident post that anyone could disprove in five minutes? You’re one of the smartest people writing about Twitter! You checking in your brain and applying to write at TechCrunch?)