Text messaging—the mode of communication has become so entrenched in our daily routine, it is no wonder I am often asked about the legalities of publishing text messages. Whether using real life text messages in a book, blog, play, or some other creative work in electronic or tangible format, make sure you are cognizant of the following legal landmines before publishing.
Depending on the content of the text messages and the intentions of the parties, some text exchanges may qualify for copyright protection. Now granted, most text messaging involves facts and questions particular to our daily lives, like what groceries to pick up or where to meet for dinner. But some exchanges will exhibit the “modicum of originality” necessary to qualify for copyright protection. After all, if the seventeen syllables in three lines of verse of a haiku are worthy of copyright protection, then so might that ranting text to your boyfriend.
A copyright protects the expression of written content recorded in material form (whether digital or in print), as long as it is original (i.e. it is not copied from someone else). A copyright makes it illegal to copy, distribute, adapt, publish, perform, or display the copyright protected work without permission from the copyright owner unless the use constitutes fair use (see discussion below). The moment content is created in a physical medium, whether digital or print, the work is copyright protected.
Who owns the copyright in text messages?
Like emails and letters, the author of the text owns the copyright. This gives them the exclusive right to reproduce, distribute, display, and create derivative works of the creative work. While a copyright owner’s rights are exclusive, there are exceptions, like fair use. Often, text communications happen in apps or on social media platforms. So check the Terms Of Service, because you and the other party in the text exchange may have consented to allow others to use the copyright protected content.
At a minimum, if the text conversation is original and creative enough to qualify for copyright protection, then the parties involved in the texting would own the copyright in the material they texted. An argument could be made that text messages qualify as a jointly authored work, whereby each person in the text conversation shares in the ownership of the entire work. Under this theory, text conversations are similar to work created during an interview, where both interviewer and interviewee have joint ownership in the copyright of the interview (see Mark Fowler’s article Who “Owns” an Interview). If the text messaging is considered a jointly authored work, both authors would have the right to exploit the copyright protected material without the other author’s consent. While it might be useful to have the non-exclusive ability to exploit the jointly authored material, there is also a duty to account for profits received from the use or license of the joint work.
Can you publish the text message?
When you receive a physical letter from someone, you do not have the right to publish it in a newspaper or book unless fair use applies or the author has given you permission (see my post about Using Letters in Creative Work for more information). The same holds true for emails and texts. Subject to the fair use rule, using or modifying an email or text from someone without their permission would be copyright infringement (provided the email or text qualifies for copyright protection). While emails and texts are constantly used and modified without permission from the authors, if this is not done for commercial purposes, then fair use would apply.
If you are using the text messages for commercial purposes and the work qualifies for copyright protection, then permission is needed. If permission is not granted, all is not lost. Remember, a copyright protects only the expression, not the underlying facts and ideas. Feel free to use any facts and ideas contained in the text exchange, but do so in your own words. Avoid paraphrasing or quoting.
What does fair use permit?
The fair use privilege allows someone to use copyright protected work without permission. But that exception depends on many factors making it difficult to provide general rules for how to apply fair use. Application of the rule tends to be fact specific and requires a case-by-case analysis. If I were going to give you one general rule, it would be that if you use a copyright protected work for your own personal use, fair use is more likely to apply than if you use it for commercial purposes.
Here are the four factors to consider when applying the fair use rule:
- The purpose and character of the use;
- The nature of the copyright protected work;
- The amount of and substantiality of the portion used; and
- The effect of the use upon the market for the copyright protected work.
These factors are not all equally important, nor do the courts when making a fair use determination consider all factors. Application of the rule is on a case-by-case basis. But you should at least review all four factors when making your own assessment.
For example, if you want to publish a series of text messages, and you do not own the copyright to the work or have permission to use the text messages, then determine if fair use might apply.
- What is the purpose and character of the use? Is it for criticism, comment, news reporting, teaching, or research? Is the use for commercial or noncommercial purposes? Novels or screenplays are commercial endeavors. Use on a blog may or may not be for a commercial purpose, while using the text exchange for criticism or teaching tends to fall within the fair use privilege.
- What is the nature of the copyright protected work? Highly creative work tends to be subject to strong copyright protection. Less creative work tends to be subject to weaker copyright protection. Facts cannot be copyright protected.
- How much of the text messaging would be used? Because of the nature of text messaging, the exchanges are short. So most likely you would be using a substantial amount of the material. Unfortunately, there are not clear assurances on how much is appropriate, like only 10% or only one line of a lyric. One rule of thumb is the shorter the work being copied, then the amount that can be used under fair use is smaller than the amount that can be used from a longer work. For example, quoting lyrics versus a passage in a book. If anything, use sparingly from short works (which of course may be difficult with a text message exchange).
- How has your use affected the market place on the copyright protected work? I would venture to say that using a series of text messages would probably not cause the other party to lose money.
In practice, remember that fair use is determined on a case-by-case basis and depends heavily of the facts. It should also be noted that fair use is a defense to copyright infringement, which is only useful if you are sued. In reality, the words of most people are not really valuable enough to warrant costly litigation. That said, even though the probability is low someone will sue for copyright infringement over something like a text exchange, asking permission seems like an ethical way to proceed before using it.
For more information on fair use, see these articles by Jane Friedman, Brad Frazer, Digital Law Media, or this Stanford University article.
Just like with Facebook, Twitter, emails, and blogs, text messages are also petri dishes for libelous statements. Anonymity seems to bring out the worst sometimes when people think they are free to spout off anything they wish. If you are going to text something that could be considered derogatory, and then publish it in your book, be aware you may find yourself the defendant in a defamation lawsuit.
See our previous Sidebar Saturdays article for more information about defamation, the defenses to a libel claim, and how to avoid a libel claim from something published in your fiction. Two points to remember with defamation:
- Truth is a complete defense to a defamation claim. No false statement equals no libelous statement. Even if minor inconsequential facts are incorrect, libel does not exist if the overall statement is true.
- Opinions are protected (because opinions are neither true or false). This defense, however, can be tricky to navigate. Just because you say it is your opinion will not keep the statement from being defamatory. Merely implying a false statement can be enough. “In my opinion, he is a rapist” is just as defamatory as “he is a rapist.” These issues often arise with memoirs and biographical works. The best way to utilize this defense is for the writer to provide in their work the underlying facts on which the opinion is based (like he was convicted of rape).
Here are a few tips to help avoid a claim of defamation when using a text exchange:
- Disguise the fictional character and event so there is no connection to the real person and event. Change the character’s sex, ethnicity, name, residence, age, physical traits, odd quirks, personal background, familial connections, profession, friends, time, setting etc. Remember that changing only the name and physical description is not enough.
- Do not use a name that suggests the real person.
- While a nicely worded disclaimer or acknowledgement might help, it does not prevent readers from identifying the real person and the defamatory statements, and often will not shield a writer from liability.
- Wait until the real person is dead. Be careful, however, you do not defame someone related, like the wife the dead man.
- As tempting as it might be, do not use your creative work as revenge. If you think readers will recognize the real person whom you used to create the negatively portrayed character, layer in as many fictional details as possible to distance the character from the real person.
- Do not publicize the fact you have used the person as your character inspiration. I once heard a writer state her method for avoiding defamation was to give her ex-boyfriend small genitals, claiming, “He’d never admit the character was based on him.” While far-fetched facts help a writer’s argument that no one would believe the character and real person are one in the same, admissions like the above do not help.
- Get a signed release from the real person involved in the text exchange if you can.
- If you are going to publish a text exchange that could be considered derogatory, make sure your facts are verifiable and the statement is true. Document the text exchange and keep copies for proof that you have not made negligently false statements. Contemporaneous notes help too (all of which should be dated, signed, and the place and source identified).
Invasion of Privacy
The truth maybe enough to deflect a claim of defamation, but invasion of privacy may apply. Usually, invasion of privacy occurs when:
- Private facts that are not of public interest are disclosed;
- There has been intrusion into a person’s secluded life; or
- Someone is portrayed in a false light, i.e. highly offensive to a reasonable person.
For invasion of privacy to apply, the injured person must be living. Normally, the injured person has a reasonable expectation the facts would be private. If the text exchange is about a sexual encounter along with a few nude photos, most people would expect that to remain confidential. Public figures and celebrities usually have trouble proving invasion of privacy because their lives are of public interest and there is less expectation of privacy. Leniency is given to a memoirist for disclosure of facts in his own stories versus a journalist or biographer telling someone else’s story.
While text messages are fair game for use in your fiction, make sure a copyright does not exist in the work, and your use will not run afoul of the tort claims like libel and invasion of privacy.
Lastly, my standard disclaimer – This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.
Photo Credit: Visual Hunt