Derivation + Twitter = Twittervative?

In case you haven't heard, two guys who are big fans of James Joyce's novel "Ulysses" decided they would put it up on Twitter.1 An interesting idea, but one that brings up some copyright law.

Section 106 of the Copyright Act provides a copyright holder (in this case James Joyce) with the right to make derivatives.2 However, the thing is, copyrights last only 70 years after the death of the author3 (in this case, again, James Joyce, who died in 1941 4). Now, nevermind that, as the Eldred v. Ashcroft5 decision warrants a whole other post (and believe me, I have plenty to say about it). The whole derivative debate hinges on authorization and if you look at section 101, you see that this exercise would probably fall under that label of "derivative."6 If it's not authorized (and I'm not going into that), then you have to go to "fair use" to save your bacon.

What I like about the Twit-Lysses (that's what I'm calling it) is it's wicked creative and if you check it out, it's seriously entertaining (for literature people). Because Mr. Joyce's copyright technically still survives (1941 + 70 = 2011), one could conceivably get in trouble for this. Technically violating the public performance right from the Act might get you in trouble....usually.7 So we've figured out you could run into trouble with 106(2) and 106(4). Ouch.

Now people are always quick to claim fair use under section 107 of the Act.7 Problem with fair use is that is typically a 50/50 if you get to a jury trial, there's all kinds of factors and no categorical exceptions,9 etc...that would be nice to get into for a jury, but ultimately, Twit-Lysses is a harmless literary exercise (in my humble opinion). It's generally transformative (hardcopy book to Twitter micro-blogging), is not acting as a market substitute for the original work, doesn't really damage the market for the original, takes a small quantitative and qualitative portion of the original and generally is entertaining. Ulysses is a fictional work, so it receives a bit more protection than a non-fiction,10 but that's really only one factor in four that heavily weigh in the favor of Ulysses.

I say Tweet on!

1: "Twitter goes literary with Ulysses performance" Reuters.com, available at http://www.reuters.com/article/technologyNews/idUSTRE55G0UY20090617.
2: 17 U.S.C. § 106(2) (2006).
3: 17 U.S.C. § 302.
4: "James Joyce" Wikipedia.org, available at http://en.wikipedia.org/wiki/James_Joyce.
5: Eldred v. Ashcroft, 538 U.S. 916 (2003).
6: 17 U.S.C. § 101.
7: 17 U.S.C. § 106(4).
8: 17 U.S.C. § 107.
9: See id.
10: See id. (noting the nature of the work is to be taken into account).

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