This post is adapted from the answer that I provided to a Quora question, “Who owns our text messages?”
To start, I wondered what it means to “own” a text message. Black’s Law Dictionary provides such definitions as “have good legal title”, “hold as property” and “possess”. I don’t think the questioner had these in mind, so I think it is correct to focus on ownership of any copyright that may subsist in text messages.
Then I wondered whether the wireless carriers have anything to say on the topic. I use AT&T Wireless. While AT&T’s terms say that I cannot send SMS spam and I am responsible for what I do if I receive a message that contains a third party’s intellectual property, I found no provisions addressing ownership of the messages that I create or any intellectual property rights therein.
In my experience, most messages do not contain authorship sufficient to merit copyright protection. However, the possibility should not be entirely dismissed. For example, a haiku could fit easily within 160 characters, and there is reason to believe that other short forms of poetry and literary expression could, as well.
If there is authorship sufficient to merit copyright protection, then the copyright belongs to the author, unless (the following being the most likely exceptions):
(a) the message was written by an employee within the scope of his or her employment, in which case the message would be considered a “work made for hire” and the copyright would belong to the employer (please see “Why ‘Work Made for Hire’ is a Term Made for Confusion”); or
(b) there is a contractual relationship by which the author’s copyright was assigned to another party (please see “Independent Contractors: How to Assign Copyrights”).
Dana H. Shultz, Attorney at Law? +1 510 547-0545? dana [at] danashultz [dot] com
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