The Politics of Hashtag Ownership and Attribution

Hashtags have taken over the world. Okay, maybe not the world, but they are now embedded in popular culture and the public consciousness. Hashtags range from the humorous, in tags like #NigeriansAtHogwarts, to the profound, creating a platform for social movements like #BlackLivesMatter. Originating on Twitter, the hashtag convention has since spread to other social media platforms and beyond, and become essential to their growth: tweets with hashtags have double the amount of social engagement, and media attention is at an all-time high, with full articles crafted around tag usage (the differences between Hillary and Bernie supporters in #BernieLostMe and #HillaryLostMe; whether or not Captain America should have a boyfriend in #GiveCaptainAmericaABoyfriend…)

On Twitter there are over 500 million messages a day. One study found that of those messages, over 40% contain hashtags, and it seems that percentage has been steadily increasing for years. Hashtags are also great content discovery tools, which appeals to both marketers and content creators. A study by RadiumOne found that “nearly 42 percent of respondents click on a hashtag to explore new content, 25 percent use the hashtag in their own posts (if meaningful), and a little over 18 percent go directly to the person or brand that tweeted it.” This creates many possibilities for newer brands and content creators, as well as established brands, particularly if they are looking to spread content: tweets are 55% more likely to be retweeted if they contain hashtags. That there is value in hashtag usage is now an unarguable fact, and by extension, the creators of these hashtags are also valuable.

This brings us to questions around ownership of hashtags, and critically, how ownership should look and be attributed.

Photo CC-BY Petit_louis.

In our society, the ownership of ideas is covered by intellectual property. So are hashtags intellectual property? The answer is a resounding “sort of.” Intellectual property “refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce”. There are several ways to protect intellectual property, including copyright, patent and trademarking. Hashtags themselves fall under trademarking laws: “any word, phrase, symbol, design or any combination thereof, used to distinguish the products or services of one person or organization from those of another”.

In 2013, hashtags were added to trademark language, but “only if it functions as an identifier of the source of the applicant’s goods or services.” And the process for trademarking is itself complicated; when looking at whether a hashtag can be registered, factors include the context, the placement of the hash symbol in the mark, how the hashtag is used and the goods or services identified. As IP attorney Patrice Perkins discusses on Awesomely Techie, to keep ownership of a hashtag you have to consistently use it in that same way; further, the entire trademark process process can take 6 to 8 months. The process is further complicated by questions about whether hashtags that have been registered as trademarks can really be enforced. What has been established is that, from a legal perspective, hashtags *could* be considered intellectual property… albeit with a lot of caveats.

April Reign, creator, #OscarsSoWhite.

April Reign is the creator of the very popular hashtag #OscarsSoWhite, created to vent frustrations with the lack of diversity among Oscar nominees. Started in 2015, #OscarsSoWhite blew up this past Oscar season when there were even less nominees of color on ballots. April argues that the intellectual property process is far too complicated and costly as it stands, especially when taking into account that many of the current creators of hashtags are not necessarily well versed in this area: “I think the process should be easier, I think the process regarding intellectual property in general should be easier. It should not take 6 months or a year, and hundreds, if not thousands of dollars once lawyers are involved, to be able to protect something that you’ve created,” April says. This lengthy, expensive and specialized process leaves creators in very vulnerable positions, in a space where they do not necessarily have the resources to protect their creations through intellectual property laws.

Importantly, IP is not the only way to give to credit to the owners of these hashtags, particularly when we move away from business usage into social content creation. Outside of legal classifications, April stressed the importance of media correctly attributing hashtags to their creators… something that frequently doesn’t occur. Given the nature of #OscarsSoWhite, this was particularly relevant: “The irony is not lost on me that I was attempting to fight against the erasure of people of color in entertainment, and yet I was being erased from that conversation.” Indeed, numerous articles were written about #OscarsSoWhite, but few of these sources cited or contacted April. The disconnect between the owner of the hashtag and the usage of the hashtag in media resulted in a backlash from non-black communities of color who felt like the term excluded them; if any of these sources had actually contacted April, they would have seen that her point was about the exclusion of all marginalized communities.  

As April highlights, attribution of hashtags is especially important when you take into account the strong presence of communities of color on Twitter; coverage without attribution quickly becomes an issue of appropriation. Her message was appropriated and misinterpreted… something that could have been easily avoided. This, unfortunately, is business as usual for many social media leaders of color who frequently see their work used without their permission. For instance, a Guardian article wrote about #BlackGirlMagic but deemed the origins “ambiguous,” with a limited reference to actual creator CaShawn Thompson. And #NetflixandChill is viewed as a random global phenomenon, not attributed to Black Twitter, where the term was created and spread. These practices allow for mainstream media to pick and choose what hashtags mean, and who gets credit, without actually citing or getting in contact with the creators — this is part of a larger phenomenon where communities of color continually see their creations stolen and appropriated.

Proper attribution would be the first step towards circumventing these issues. But as April states, proper attribution does not mean limiting usage: “No one wants to limit the hashtag from public consumption because that is the whole point. You continue a conversation about a particular issue, and you can use it find information about the issue, share information and have those discussions. I don’t know any hashtag creator who would say ‘I created the hashtag, so don’t use it,’ because it belies the point.” Hashtags are inherently community sourced, and that should not get lost in the conversation about ownership.

Banner image via Black Girl Nerds.

Much of the sentiment espoused by April was echoed in my conversation with Jamie Broadnax. Jamie is the creator of Black Girl Nerds, “a place for women of color with various eccentricities to express themselves freely and embrace who they are”.  She frequently hosts live-tweeting sessions of popular TV shows and movie nights using hashtags crowdsourced by the Twitter community, with a lot of input from Black Twitter in particular. For Black Girl Nerds, hashtags have served as online hubs that bring together communities that didn’t necessarily have a space to commune previously.

In our discussion, Jamie stressed the importance of media accountability, especially after a recent incident when a article erroneously misattributed a hashtag to Jamie rather than the actual creators… a situation that could have been avoided if the writer had actually reached out to her. To this point, Jamie believes that tools can be created to avoid these issues; for example, she suggests Twitter create a tool that makes it easier to figure out where a hashtag originated. She particularly notes Black Twitter’s commitment to attribution: “That’s one of the great things about Black Twitter, they are good at producing receipts. They find the original tweets, the original statements. They keep the community accountable.” If Black Twitter can trace a hashtag’s origins, why can’t the Twitter corporate office? “The platform should take care of and reward these creators that have grown the platform to what it is now,” she says. Finding a way to solve this problem may actually lie in another problem that Twitter has: diversity. It would serve Twitter to hire people of color — particularly Black people — to help create tools that would make attribution a much easier task; after all, these members are well-versed in attribution, as they must constantly fight for it.

Conclusion

Photo CC-BY ecodallaluna.

What can be taken from my dialogue with these two creators is that conversations about ownership of hashtags must stress the importance of attribution and media accountability. This is particularly important with so much content on Twitter coming from communities of color… communities unfortunately used to having their work appropriated from them. Social media is the new frontier, and with each new tool added to this frontier, new rules will have to be developed to responsibly engage with them.

The great thing about social media, however, is the rules are currently being written. Things that were once accepted as status quo in other mediums, can now be addressed from a new ground level.