Comedian Conan O’Brien made news last summer when he found himself the subject of a lawsuit alleging copyright infringement for the use of four jokes in his opening monologues.[1] The jokes were previously published on the personal blog and Twitter account of comedic writer Robert Kasberg. While most accusations of joke theft do not result in the legal action faced by Conan O’Brien, accusations themselves are not atypical in the world of comedy. D.L. Hughley, George Lopez, Robin Williams, Carlos Mencia, Milton Berle, Chris Rock, Dane Cook, Denis Leary, and Amy Schumer are just a handful of comedians who have been the subject of such accusations.
If these accusations are founded in instances of actual unauthorized reuse of material, what legal protections or avenues for recourse do comedians have to protect their comedic works? In this blog post we will look at what rights and challenges comedians face in protecting their works under U.S. copyright law.
Copyright Protection for Jokes
Can you copyright a joke? Like many questions in copyright law, the answer is “it depends.” Under U.S. Copyright Law, original works of authorship that are fixed in a tangible medium of expression are eligible for copyright protection. While many jokes and comedic routines may meet these requirements, there are a number of initial barriers to protection that authors may face.
Originality: Originality requires that a work be independently created and have a minimal degree of creativity.[2] Comedic works do not need to be novel to receive copyright protection, but the author must create the work without copying the original expression of another. When similar jokes are both based on a current event, for example, is it more likely that both comedians based their comedic material on a common news source, rather than the other’s original material. Works must also possess at least a spark of creativity. While the requisite level of creativity is low, copyright will not protect ideas (including narrative structure or general plotlines), concepts, or common themes.
In addition, there may be situations in which there are only a limited number of ways to express an idea. If this situation exists, the idea merges with the expression, and the expression becomes uncopyrightable (this is referred to as the merger doctrine in copyright law). Similarly, copyright will not protect standard expressions or stock characters or events that are ordinary to a particular subject matter (this is referred to as the scènes à faire doctrine in copyright law). The structure of a knock-knock joke, for example, cannot be copyrighted.
Fixation: Fixation requires a work to be permanent enough to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. The work must be embodied in a material object by or under the authority of the author. This may include written text (e.g., a book, script, or Tweet), a recorded podcast, DVD, or even a live broadcast.[3] Despite the many ways in which a work may be fixed, comedians may not satisfy the fixation requirement in cases of unrecorded improvisation or live routines. Comedians may also face issues as they adapt and modify their routines over time or if their routine changes based on an unpredictable element, such as audience interaction.
Increasing Reliance on Social Norms
Given these initial barriers, some jokes may not qualify for copyright protection or the copyright protection received may be fairly thin. This reality aligns with the findings of a major study conducted by Dotan Oliar and Christopher Jon Sprigman that analyzed how stand-up comedians protect their jokes.[4] Following a series of interviews with comedians, Oliar & Sprigman found that most comedians are not relying on the formal legal protections of copyright law to protect their works, and instead rely on a system of somewhat recently developed social norms. These social norms developed contemporaneously with a change in the nature of stand-up comedy—comedians are now investing more effort in the development of original textual material and investing less effort to the performance element of their routines.
Of the norms identified, the most prominent norm governing the behavior of stand-up comedians is the norm against appropriation, the violation of which is often detected by fellow comedians viewing peer performances.[5] While the initial step to enforcing this norm is negotiation (the author of the work will request for the appropriator to cease using the material), the norm may also be enforced through informal sanctions, including attacks on reputation and refusals to deal, both of which may result in limited work opportunities for the appropriator.[6]
A reputation as a joke thief can have a disastrous impact on a comedian’s career. Because the comedic community is relatively small, reputation and respect among peers is of great importance. Comedians retaliating against alleged joke theft may refuse to share the same bill as the accused and booking agents and club owners may refuse to engage with the alleged thief. These refusals to deal directly hamper an individual’s ability to find work and build a fan base.
Additional findings from the study reveal private enforcement to be a more legitimate response to the violation of the norm than public enforcement, with comedians revealing themselves to be unreceptive to the appropriation of comedic ideas, even when such ideas would fall outside the scope of copyright protection.[7] Unlike copyright, the norm against appropriation has no term limit (at no point do jokes become free to use as works in the public domain may be freely used) and the norm is less likely to be successfully enforced when the alleged joke thief has a reputation as a more popular comedian that the accuser.[8]
Additional norms include a norm against joint authorship (the comedian who comes up with the premise of the joke is the owner of the joke), a norm regarding priority (the comedian who can present evidence of first performance is given priority), a norm regarding works made for hire (parties who pay for a joke own it, even if conditions for a work made for hire are not met), and a norm regarding transfers (oral agreements are enough to divest copyright ownership).[9] For comedians, these social norms function to fill the gaps left by a cost-prohibitive legal system, while arguably providing more incentive to generate new comedic material.
Shifting Norms & the Future Role of Legal Enforcement
New technologies may allow comedians to more clearly establish public timelines, evidence of independent creation of jokes, and fixation of comedic material. These new technologies and services may also provide easier avenues for copyright enforcement through automated or streamlined takedown processes designed to protect the interests of copyright owners. Freelance writer Olga Lexell, for example, was able to rely on such a process last July when she found her jokes reposted across Twitter. After a simple takedown request, Twitter removed the allegedly infringing content.[10]
The social norms detailed in Oliar & Sprigman’s study were published in December 2008; four years after the launch of Facebook, three years after the launch of YouTube, two years after the launch of Twitter, and two years prior to the launch of Instagram. As public recordation and enforcement becomes easier through the adoption of these social media platforms, it remains to be seen how, if it all, the cultural norms already relied on within the industry will shift.
It is possible that these new technologies and services will make formal legal enforcement more attractive to comedians. Or perhaps the same or new social norms, or the adoption and enforcement of these norms by a comedian’s social media followers or the general public, will continue to provide an effective alternative or supplementary form of enforcement for both allegations of copyright infringement and broader claims of plagiarism.
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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries
[1] Kaseberg v. Conaco, LLC et al., Case No. 15-CV-01637-JLS-DHB, U.S. District Court for the Southern District of California (2015).
[2] Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991).
[3] The term fixed is defined to include “[a] work consisting of sounds, images, or both, that are being transmitted…simultaneously with its transmission.” 17 U.S.C. § 101.
[4] Dotan Oliar & Christopher Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008).
[5] Id. at 1812.
[6] Id. at 1815.
[7] Id. at 1821–22.
[8] Id. at 1824.
[9] Id. at 1825–31.
[10] Laura Sydell, Twitter Takes Down Unoriginal Jokes, But All of Yours Are Probably Safe, NPR (July 28, 2015), http://www.npr.org/sections/alltechconsidered/2015/07/28/426900829/twitter-takes-down-unoriginal-jokes-but-all-of-yours-are-probably-safe.
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