A DISCUSSION OF LAW AND JOURNALISM

Hey That’s My Line! Now Pay Me!

Samsung Apple Ad

By Will Bartholomew

Cut to: A scene outside an Apple Store. A long line waiting for the doors to open. The text on the screen flashes “Los Angeles, California.  Only 7 hours to go.”

Young guy in a grey sweatshirt: “I heard that you have to have an adapter to use the dock on the new one.”

Another young guy in a grey sweatshirt “Yeah, yeah, but they make the coolest adapters!”

Samsung’s latest ad campaign skewers the cult of Apple by featuring hipster-types uttering lines like these. The ads are caustic. They target, grab hold of, and shake for all it’s worth the perception that Apple devotees are snooty, entitled, and clueless about the inferior caliber of their beloved products. The message is like a heat-seeking missile homed-in on the most vulnerable chinks in Apple’s armor.

These ads didn’t spring from the minds of marketing gurus in gleaming Manhattan towers, though. As The Wall Street Journal reports, many of the lines are the brainchildren of regular folks — maybe sitting on their couches, in sweats — posting on Twitter.

I don’t know about you, but if I came up with a real witty zinger, and then saw it in an ad on TV, I’d want some credit.  And compensation. Would I get it?

Is what we post on social networks our intellectual property? When our social networking gems are used by marketers — or in TV shows, movies, books, or music —have they been stolen? Can we sue?  LASIS explains.

The good news is that under copyright law, I automatically get copyright protection in something I create, if that something is copyrightable. But that’s a big “if.” Huge.

In formulating copyright laws, Congress tried to strike a balance between providing enough copyright protection so creators can monetize their efforts, but not so much protection that no one can create anything new without infringing on existing copyrights.

That balancing act comes down to this: Only an original expression that is fixed in a tangible medium is copyrightable. I can’t claim to own a brilliant idea just sitting up there in my head. I have to write it down, take a picture, or capture it on video — express it, in a fixed form — if I want it protected. And even then, only that particular expression of my idea is copyright protected, not the idea itself.

There’s an even bigger barrier, though, and it’s that my fixed expression must be original. And whether my social media post is a short written statement, a picture I’ve taken, or a video I’ve shot, matters a lot when it comes to originality.

If my post is a short written statement, there are two major factors weighing against copyright protection. First, facts don’t qualify as an original expression, and are therefore not protected by copyright law. Most posts on social networking sites — Tweets, status updates  —well, they’re basically just facts. “I haven’t left my apartment in four days because of Hurricane Sandy.” “I just ate 22 Snickers bars.”  If you want to steal these facts, they’re all yours, and copyright law won’t stand in your way.

Second, even if a social networking post goes beyond plainly stating facts, (by expressing them in a particularly witty way, for example), the post still will often not be sufficiently original to qualify for copyright protection. This has something to do with the short length of most posts. Copyright protection only extends to expressions of ideas, not the ideas themselves. In a short post, such as a Tweet or a status update, the idea the post communicates will often be indistinguishable from the expression. In such cases, idea and expression “merge” because there just aren’t that many different ways to express the idea being communicated. When this happens, granting a copyright on the expression would be the same as granting a copyright on the idea and, remember, that’s not allowed.

For instance, if I Tweet: “The 22 Snickers bars I just ate were a melty, delectable feast,” there is some individual expression in my post. I haven’t simply recited cold facts, but have arguably painted a picture using an original choice of words. But I probably can’t get copyright protection for such a short statement. There are only a limited number of ways to express the idea I am communicating, and it’s possible, even likely, that exact sentence, or something close to it, has already been written by others, many times. For this reason, things like titles and short descriptions of everyday scenes are generally not copyrightable.

So even if my Tweet is lifted verbatim by the Samsung ad team for its next commercial, there’s probably nothing I can do about it. My short, witty statement is not likely to be sufficiently “original” to be copyrighted.

Pictures and videos I post, though, are a different story. Because there are an infinite number of factors that make a video or picture unique — the lighting, angle, subjects, expressions, film used, etc. — they are essentially always copyrightable. The problem of the idea and expression “merging,” and making my visual posts un-copyrightable, won’t happen nearly as often as it would with a short written statement like a Tweet or status update.

But even if I’ve created and posted something copyrightable, I’d still have to prove infringement, and that’s yet another hurdle. If the allegedly-infringing work only resembles my work, and is not an outright copy, I’d have to prove that the alleged infringer had reasonable access to my work, and that her work was substantially similar to mine. The courts have adopted various tests that make this inquiry pretty complicated, but basically they look at how likely it is that the alleged infringer saw the work, and how much of that work appears to have been copied.

Even if I pass this test, victory may still elude my grasp. Alleged-infringers can argue that they never actually saw my post, and that they created their work independently. Each passing minute sees 45,000 Tweets, 72 hours of video uploaded to YouTube, and 803,000 posts or status updates on Facebook. Unless my post has a huge number of hits, the argument that my would-be infringer just didn’t see my post would be pretty believable.

It gets worse. Believe it or not, even if my work is copyrightable and I can prove infringement, it looks like I still may not have a case. Most social networks have a provision in their terms of service that grants them a non-exclusive license in any content users post. This means that I retain the rights to what I post, but I also grant the social network the rights to do basically whatever they want with my content. For instance, when I Tweet, I grant Twitter the rights to “use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”

So if the social network has a clause like this, and it’s the one doing the infringing, I don’t have a suit.

Some sites go even further. Under the terms of service of Reddit, for instance, I allow it to do everything with the content I post that I allow Twitter to do when I Tweet, but I also “authorize others” to do all these things. I still have the rights to my content, but now everyone else — not just the social network — does too. Because I have granted everyone in the world the right to use my content however they want, I cannot sue anyone for infringement. Bummer.

So here’s the deal: if I suspect that someone has stolen something I posted on a social network, I’m not going to march down to the courthouse to file a lawsuit. I’ll just stay on my couch and text my friends, letting them know that the creative genius behind that cool trending ad is — me.

Comments

3 Comments »

3 Responses

  1. JS says:

    it seems as though you went out of your way to use the phrase “chink in the armor”. could it be because you are writing about a korean company?

    cue the lies or some ignorant, self righteous drivel..

  2. T.R. says:

    Is JS serious or just snarky? I’m not sure.This was a good article and the Internet brings out all sorts of wackos in comments.

  3. courtney says:

    From “How to LIve Without Irony” in New York Times today:
    http://opinionator.blogs.nytimes.com/2012/11/17/how-to-live-without-irony/?hp

    “Take, for example, an ad that calls itself an ad, makes fun of its own format, and attempts to lure its target market to laugh at and with it. It pre-emptively acknowledges its own failure to accomplish anything meaningful. No attack can be set against it, as it has already conquered itself. The ironic frame functions as a shield against criticism.”

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