Tweet talk: IP protection and social media
Is a tweet the intellectual property of its owner? Can rights in a hashtag be protected, infringed or freely commercialised by third parties?
Given that the aim of social media is to facilitate open public communication, it can seem strange, or even counterintuitive, to seek to protect a hashtag, a handle, or a tweet. However, if you are sharing creative content, or marketing your brand through social media, it is important to be aware of how this content is – or isn't – protected.
Trade marks – friend or foe?
While a business will often file its own brand name as a trade mark, it may not seem immediately obvious to do the same for other short phrases or taglines used by the business. However, these can often be incredibly valuable and worthy of protection. From 'on fleek' to 'Occupy Wall Street', slogans have immense power in the public mind and can be as significant as the brand name behind them.
But it is important to act quickly. Once your phrase is out there – and if it is unprotected by a trade mark – there is a risk of it being copied and commercially exploited by third parties. The internet is littered with stories of posts being 'stolen' by third parties and commercialised: from 2014's 'on fleek' to (most recently) the phrase '100% that b****.' It is therefore key to consider trade mark protection for such taglines as early as possible, preferably before they are shared on a social media platform.
However, trade mark protection is not necessarily a guarantee of exclusivity. A trade mark can only protect a phrase in respect of certain goods and services in relation to which it is used, so if a third party uses your mark in a tweet or hashtag for completely different goods / services, it may be difficult to assert infringement unless you are a well-known brand and unless the third party mark takes unfair advantage or is detrimental to your mark. Similarly, if they aren't using it "in the course of trade" or the use is purely descriptive – as will often be the case on social media platforms – this too will preclude any claim for trade mark infringement.
Trade marks owners should also beware the risk of their mark becoming generic (i.e., descriptive of a group of products / services) and thus at risk of revocation if it is shared on social media widely enough to render it generic – think 'escalator,' 'xerox' and 'frisbee'. The risk of genericide is higher in the social media space, where phrases take on a life of their own and branding cannot be as carefully controlled. One only has to think of McDonalds' 2012 '#McDstories' campaign to appreciate how quickly a hashtag can run amok.
What about copyright?
So is there an easier solution for creative brands? Copyright may offer assistance in some circumstances, especially for longer tweets, which may attract copyright protection if sufficiently original (although this is as yet untested in UK law, particularly within the context of Twitter's 280-character limit). If a tweet attracts copyright, this has the benefit of automatic protection once the tweet is posted. However, there is a fine line between what attracts copyright and what does not, and the fact that a post is lengthy will not always deter third parties from seeking to copy and commercialise it (see the 2017 dispute around Frank Ocean's anti-discrimination t-shirt).
With the continuing misconception that anything posted in the public domain is 'up for grabs', it is important for brand owners to stay ahead of the curve. Considering whether to file for appropriate trade marks, staying vigilant about commercial third party use of your content, and adopting a flexible approach to protection are all important in the race to keep up with evolving social media practices.