Kenneth Stern, a lawyer, became concerned that a forensic accounting firm he retained was overcharging his client and posted a 23-word query to a listserv seeking others with similar experience. The listserv message read in full:
“Has anyone had a problem with White, Zuckerman …cpas including their economist employee Venita McMorris over billing or trying to churn the file?”
Robert Weinstein copied the listserv message and emailed it to his sister Sara Weinstein, who was a client of White, Zuckerman. Sara Weinstein forwarded the email including the text of the listserv message to White, Zuckerman. Stern obtained a copyright registration for the listserv message and sued Robert and Sara Weinstein for copyright infringement. Stern v. Does et al, CV 09-01986 DMG (C.D. Cal., Feb. 10, 2011)
The main issue was whether the single sentence listserv message was sufficiently creative to warrant copyright protection. The decision contains an interesting discussion of the originality requirement, which requires at least a modicum of creativity for copyright protection, as it applies to short textual works. To demonstrate that copyright protection may exist for a single sentence, the court quotes the first stanza of Jabberwocky, which coincidentally contains 23 words:
“Twas brillig, and the slithy toves / Did gyre and gamble in the wabe;/ All mimsy were the borogroves,/ And the mome raths outgrabe.”
The court contrasted the creativity of Jabberwocky with the factual nature of the plaintiff’s listserv message. The listserv message contained only factual information and its presentation was functional in nature – to request whether anyone on the listserv had a similar experience with the forensic accounting firm. The court found that the practical expression of the listserv message was indistinguishable from the idea conveyed, which is not protectable.
The court’s decision on the issue of originality, while not ground-breaking, is important. The listserv message at issue in this case contained 150 characters, slightly longer than a Twitter message. Given the paucity of cases dealing with short textual works, the case is likely to influence future decisions on copyright protection for Twitter messages.
As an alternate ground for its decision, the court found that the defendants’ use of the plaintiff’s work was a fair use. The non-commercial nature of the defendants’ use and the lack of any harm to the plaintiff guaranteed a win for the defense. The most interesting aspect of the fair use discussion is the court’s holding that the defendants’ verbatim copying of the entire work constituted a transformative use of the plaintiff’s work because it served a different purpose – to alert White Zuckerman about Plaintiff’s potentially libelous statement. In the final balancing of the fair use factors, the court noted the potential chilling effect of giving copyright protection to short comments posted in blogs, listservs, and other online forums, which are frequently quoted in their entirety.
The court begins its analysis of the case with a quotation from The Art of War by Sun Tzu that is suggestive of the outcome:
“He will win who knows when to fight and when not to fight.”
The plaintiff had nothing to gain by filing suit and much to lose. In the end, the court properly held that the defendants were entitled to recover their reasonable attorney’s fees for defending a case that was Much Ado About Nothing.