Hashtag games combine the fun of quick, incongruous exchanges with the work of creative expression and do so online through microblogging, predominantly (if not exclusively) on Twitter. Currently, hashtag-game participants face two main obstacles to copyright protection for their fun expressions: the expressions' brevity and Twitter's terms of service. To protect the copyrights that Internet users acquire by participating in hashtag games, courts should focus on the creativity rather than the brevity of the resulting expressions. Furthermore, Congress should amend the Digital Millennium Copyright Act (DMCA) to prevent Internet service providers, like Twitter, from encroaching on users' rights through broad licensing and sublicensing schemes in their terms of service. This Note will introduce hashtag games and argue for the copyright protection of short, humorous works such as expressions deriving from hashtag games. It will also provide an overview of microblogging and intellectual property rights by examining the terms of service of Twitter and other Internet service providers that enable microblogging and by considering internal and external limitations on the licensing schemes presented in such terms of service. Because Twitter's terms lack sufficient internal limitations and the external limitations of offer and acceptance and unconscionability that contract law supplies do not suffice to protect users' copyrights in the hashtag-game context, this Note will conclude that Congress should safeguard the rights of hashtag-game participants by amending the DCMA to prevent licensing schemes broader than necessary for the proper functioning of the Internet.
"You'll LOL @ This Tweet": Copyright Protection for Hashtag Gamers,
45 Fla. St. U. L. Rev.