Copyright Protection: Can a joke be copyrighted?
Whether a joke can be copyrighted is an interesting issue. Stealing jokes is nothing new to comedy writers. Yet, it is uncommon for comedians to use copyright infringement lawsuits to protect their jokes because of the costs involved. Moreover, due to the difficulty in proving "ownership" of a joke, success rates in such lawsuits are low.
In theory, a joke can be copyrighted, but there are numerous barriers that might not allow a plaintiff to gain copyright protection. We will discuss each of the five hurdles a plaintiff must overcome to succeed.
The first hurdle that a plaintiff must overcome is referred to as the “idea vs. expression” dichotomy. The plaintiff must prove that the “expression” was infringed upon, not an “idea.” An expression must be a specific arrangement of designs or words.
Federal copyright laws protect the expression of ideas but not the ideas themselves. The “idea vs. expression” dichotomy was introduced in Nichols v. Universal Pictures Corp. In that case, a playwright sued a film company for use of similar comedic story, which entailed a Jewish man marrying an Irish-Catholic woman whose families both disapproved of the marriage.
The court in Nichols found that the comedic concepts lampooning the stereotypical characters were ruled to be universal “ideas” and thus not eligible for legal protection under copyright laws. To successfully assert a copyright infringement claim, a plaintiff must prove that the “expression” of the idea was infringed upon by another party. It is the “expression of the idea that must be original to the creator to possibly gain legal protection through copyright laws.”
The second hurdle faced by plaintiffs when seeking copyright protection for a joke is that the plaintiff must demonstrate that the subsequent use of the joke was not an original and independent creation.
Many times, comedians tell jokes pertaining to what is trending in news or culture. For example, in their law review article Emergence of Intellectual Property Norms, the authors discuss a joke about the construction of a border fence between the United States and Mexico and how several comedians in the 2000s used this idea to create jokes. Each of the comedians used the same punch line, asking the question, “Who do you think is going to build that wall?” Yet, each comedian told the joke with slightly different spins, altering the joke’s introduction.
The court found that telling a joke with slightly different words, which in the industry is called a “write around,” alleviated all potential copyright infringement claims because “write arounds” allowed subsequent writers to claim originality. These write arounds make it harder for a plaintiff to claim copyright protection because future comedians are placing their own unique twists on a joke, making them original productions.
A third hurdle further complicates a plaintiff’s copyright protection claims. Under copyright law’s Merger Doctrine, if there are limited ways to express an idea, the idea will merge with the expression of the idea and the expression will receive no copyright protection.
The Merger Doctrine was first expressed in 1967, in Morrissey v. Procter & Gamble Co. There, the plaintiff copyrighted a contest’s rules that involved using the contestants’ Social Security Numbers for identity purposes.
The court held that the idea of using Social Security Number for identification could not be copyrighted. Protecting a contestant’s identity could only be done in a limited number of ways. The idea of protecting contestant’s identity had “merged” with the expression of the idea, which was the use of Social Security Numbers. Consequently, the plaintiff’s rule could not obtain copyright protection.
A fourth hurdle a plaintiff must overcome concerns the length of time that a creative work or joke is accessible by the public. A plaintiff’s original, creative work must be permanent enough so that it can be reproduced by others longer than than a transitory duration.
For example, Olga Lexell, a Los Angeles-based freelance writer composed a joke and posted it on Twitter. Soon afterwards, many Twitter users used Lexell’s joke as their own and shared it with their followers. Lewell informed Twitter and the social media platform removed the offending tweets.
A lawsuit did not ensue, but legal analysts contended that even if Lewell had pursued legal action, she would not have been successful. The tweet did not satisfy the fixation element because Twitter removed the tweet within a short amount of time after it was originally posted and the tweet was not available to the public for long enough to be reproduced.
The Fair Use Doctrine, codified in 17 U.S.C. Section 107, can also preclude a plaintiff from claiming copyright infringement. The Fair Use Doctrine allows for the use of copyrighted material by another entity for commentary, reporting, teaching, or research.
Whether a subsequent se equates to “fair use” is determined after weighing the different elements in the following four-part balancing analysis:
(1) the purpose and character of the use, whether it is commercial or for educational purposes;
(2) the nature of the copyright work;
(3) the amount and the substantiality of the portion used; and
(4) whether the effect of the use on the market harms the current market for the original, copyrighted material.
TCA Television Corp. v. McCollum focused on the Fair Use Doctrine in a copyright infringement suit. A Broadway play used part of the famous joke “Who’s On First?” a comedy routine developed by American comedians Abbott and Costello. In the case, the heirs of the comedians sued the play’s writers for copyright infringement. The legal issue for the court became whether the unauthorized use of the joke in the play qualified as “fair use.”
The court held that the playwrights’ subsequent use of the famous joke satisfied fair use and did not infringe upon copyrighted material. In its opinion, the court focused on the fourth element of the four-part balancing test. The court reasoned that the Broadway playwrights utilized “Who’s On First?” in a manner that wasn’t intended to, and did not, harm the market for the original Abbott and Costello’s joke. The market for Abbott and Costello’s comedic material remained the same and potential consumers did not stop purchasing Abbott and Costello DVDs or videos to view the play instead. As a result, it was a fair use that precluded liability for unauthorized use of the copyrighted comedic routine.
Conan O’Brien’s Dilemma: Copyright Infringement or Smooth Sailing?
In a recent copyright infringement suit against Conan O’Brien, the plaintiff, Robert Kaseberg, alleges that Conan O’Brien and his writers unlawfully used Kaseberg’s jokes. Kaseberg argues that after he posted four jokes on his personal blog, each joke appeared in the monologue segment of O’Brien’s late-night talk show, Conan. The plaintiff filed copyright applications for each of the jokes in 2015 and he calls the jokes on his blog literary works. The applications are still pending.
Kaseberg is seeking actual, statutory, and increased statutory damages for the willful infringement. The court recently required the defendants to produce each piece of email correspondence sent prior to the dates that the jokes were told to determine whether the writers accessed Kaseberg’s blog and actively copied Kaseberg’s jokes.
One of the jokes that Kaseberg argues was infringed upon appeared in a February 3, 2015 blog post:
“Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll.”
During his monologue on February 4, 2015, O’Brien told the following joke:
“Tom Brady said he wants to give the truck that he was given as Super Bowl MVP to the guy who won the Super Bowl for the Patriots. Which is very nice. I think that is nice. I do. Yes. So, Brady’s giving his truck to Seahawks coach, Pete Carroll.”
Idea v. Expression
In both jokes, the idea presented is that Tom Brady wants to thank the person that helped his team the most after they won the Super Bowl. The expression of the idea is that Brady would be giving away the truck to the other team’s coach.
When determining whether the joke is a copyrightable expression or merely an idea, the court will look at the underlying elements of the joke. In this case, the expression that Brady is giving away the prize truck to an opposing team’s coach to thank the most important person who helped the Patriots, is unique because there are potentially hundreds of people who helped the Patriots win the Super Bowl. Since the plaintiff’s expression was so unique, it is likely that he can overcome the first hurdle to copyright applicability and can move forward in his lawsuit.
Originality and Independent Creation
Here, O’Brien and his writers used the same two parts from Kaseberg’s joke in O’Brien’s monologue. However, the defendants might argue that the write around they used when developing their version of the joke in O’Brien’s monologue made O’Brien’s joke original and an independent creation.
During the electronic discovery process, the plaintiff will investigate Conan’s writer’s prior emails and work product. The defendants’ claim that they did not infringe upon Kaseberg’s jokes will be aided if they present emails or other evidence that they were creating an original and independent creation for O’Brien’s monologue and were not using the joke from Kaseberg’s blog.
The plaintiff must successfully argue that the merger doctrine does not apply to the joke to proceed with his copyright infringement claim. Here, the most obvious joke that can be made is that Brady wants to thank the opposing head coach by giving him the truck. This is because the opposing head coach called a play that many consider ill-fated for his team and beneficial to the Patriots.
Unlike the contest rules that used Social Security Numbers to protect identity in Morrissey, which were an idea that could only be formulated in a limited number of ways, the idea that Brady wanted to give away the prize to the individual who helped the Patriots win the Super Bowl, is limitless. Since the idea and the expression of the idea weren’t intertwined, the plaintiff can argue that the merger doctrine isn’t applicable and that the defendants had numerous ways of making a joke about Brady wanting to thank the person who the Patriots the Super Bowl.
The Fair Use Doctrine
Similar to the analysis in McCollum, the analysis in Kaseberg’s lawsuit will focus on the fourth element of the Fair Use Doctrine: whether the effect of the joke in O’Brien’s monologue in the market harms the current market for the original, copyrighted material.
Like Kaseberg’s joke, O’Brien’s joke was for comedic purposes as well as commercial purposes. With such a funny joke, Kaseberg sought to increase visitors to his blog to generate advertising revenue, while O’Brien and his writers sought to increase commercial revenues with a higher national program viewership with funny and timely humor.
Kaseberg could successfully argue that the market for his humor has been harmed because less people visit his online blog if they see a joke that has already been told to millions of people on national television. The potential visitors would think that the humor in his joke is stale, and would be less likely to visit the blog again in the future.
Finally, the plaintiff’s joke appears to satisfy the fixation element. The plaintiff’s jokes are all accessible on his blog and were not removed from his blog. Because of their easy accessibility for those browsing the Internet, the jokes are permanent enough in character and can be easily viewed and subsequently reproduced by others.
Initially, it appears as if Kaseberg can successfully assert copyright infringement of his joke. On the one hand, Kaseberg’s joke was a permanent and unique expression which did not merge with the idea of Tom Brady wanting to thank the person most responsible for the Patriots Super Bowl win. Additionally, O’Brien’s joke would harm the potential “market” of a potential audience for Kaseberg and his humor.
On the other hand, if O’Brien and his co-defendants can pesent evidence that they used their own original methods to write a joke and that they did not access Kaseberg’s blog to write the joke for O’Brien’s monologue, then Kaseberg’s copyright infringement claim cannot proceed.
No matter what occurs in the litigation, this case study demonstrates the uphill climb a plaintiff in a copyright infringement claim faces. Simply put, seeking copyright protection for humorous quips is no joke.