who owns your tweets? (@novaspivack)

Thought I’d tackle a relatively short and easy one today – it’s been a long, long week. Anyway, I noticed a tweet from @novaspivack (via a retweet by @mathewi) asking “Legal question: Who owns the copyright to your tweets, and who has the ultimate right to decide who else can access them?”

Under both the US (§201) and Canadian (s. 13(1)) Copyright Acts, the first owner of a work in which copyright subsists is the author of that work. In other words, you write it, you own it. So that’s your starting point. You write a tweet, you own it.

There are also exceptions to the rule that an author owns the work. For example, if you author something in the course of your employment, your employer will be the first owner of the work absent an agreement to the contrary. So, for example, if you tweet as a part of your job, then copyright in your tweets are owned by your employer, not you, unless you’ve struck a deal saying otherwise with your employer. In the US, this is often referred to as a “work made for hire” (sometimes contracted to “work for hire”).

You can also agree, up front, with a contract with someone else, that a work that you author will be owned by them. Subject to the usual legal niceties of creating a legally enforceable contract (and some caveats, which I won’t get into here), that means that what you write will be owned by that other person. So, for example, you can agree under a contract to tweet for someone else and that those tweets will be owned by that other person.

This can also be done after the fact. You can author a work, and then sell it to someone else under a contract. Then they’ll own it. This could be done with tweets. So for example if a publisher wanted to compile your past tweets into a book, you could sell them the copyright in those tweets, and they’d be free to do what they want with them.

Along similar lines, you can also grant licenses to work you create. The granting of a license means that you give someone else some rights that only you would, in the absence of that grant, be entitled to exercise. So, for example, you could grant someone the right to publish a book of your tweets, in paper form only, in North America. Once you grant that right, then they can publish that book without infringing your copyright.

The reason I mention licenses is because there is a specific term in the Twitter terms of service pursuant to which users of Twitter grant Twitter a license. Here it is, for your reading pleasure:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) 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).

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

“Content” basically means your tweets. So you keep ownership of your tweets. BUT, you grant a license to Twitter to do a whole bunch of stuff with it. These rights constitute, more or less, anything you as the owner could otherwise do. It’s quite broad. Very broad, in fact. Substantively, really the only difference between this and giving up ownership completely is that you can continue to use your tweets in other ways. So for example if you want to put your tweets on Facebook, or your blog, or sell a book of your tweets, you would be free to do so. Then again, so can Twitter, if it wanted to.

All of this of course assumes that the terms of service are enforceable. There are arguments for and against, but that’s a bit beyond the scope of this post.

So the second part of the question is who has the ultimate right to decide who else can access them. While, as you probably know, Twitter does allow you to restrict who can see your tweets, they do have the right to give access to whoever they choose, and completely disregard your settings. I didn’t see anything in their terms of use that imposed a contractual restriction on them to honour restricted user settings. Then again, I haven’t exactly read it word for word.

I imagine there might be situations where you could be able to terminate the contract, even though the terms of service don’t expressly provide for that, but I imagine it would be challenging to suggest that the license rights granted to past tweets would terminate. Interestingly, the rights granted under the license language above aren’t characterized as “perpetual” (i.e. forever), which they often are in such documents.

It may also be worth mentioning that Twitter can control access to your tweets to the extent it involves Twitter. Just to make this clear, they have this provision in their terms of use:

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames. Please review the Twitter Rules (which are part of these Terms) to better understand what is prohibited on the Service. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Twitter, its users and the public.

So, for example, they can pull all of your tweets off Twitter, so that no one can see them anymore. However, that doesn’t preclude you from, for example, reposting all your tweets to Facebook or a blog, if you wanted to, and assuming you retained a copy of them.

Of course, lawyers tend to argue about everything and anything, so I’m sure someone out there may be inclined to disagree with something I’ve written above. Which is fine. And of course the usual – not legal advice, no lawyer-client privilege, no obligation or liability. Just in case you live in the US.

Fascinating stuff, isn’t it?