Can You Copyright a Joke? (npr.org)

Reader AnalogDiehard writes: Writer Alex Kaseburg has filed a lawsuit against TBS and Time Warner alleging that jokes recited on the Conan O'Brien show were stolen from his blog shortly after they were published. The case gets heard in August and could create new protections in a legal forum in which there is little precedent or clear definition in what defines a joke as "original" and subject to legal protection, especially in an industry where theft of humor occurs on a regular basis. But the outcome of any judicial decision opens a big can of worms and raises serious questions: Will YouTube videos get shut down from DMCA notices citing copyrighted jokes? Will compliance staff have to be retained to ensure that their magazine or news article, TV show, movie, or broadway act is not infringing on copyrighted jokes? Will copyrights on jokes get near-perpetual protection like the controversial Sonny Bono Copyright Extension Act? Will people be able to recite limericks without fear of infringing? Will tyrannical politicians copyright critical jokes to oppress freedom of speech? Will legal cases be filed arguing that a comedian's joke(s) bears too much similarity to a copyrighted joke recited decades ago? Will girl scouts be free to tell copyright jokes around the campfire?

Comments

Apparently yes...

[Anonymous Coward]

I tried to say I was a Slashdot moderator and got chewed out for it.

Simple

[s.petry]

No

Similarly, you can't Copyright a word, or a string of words. You can trademark a company name, but I can tell jokes about your Company all day long and not violate your trademark law. You can copyright very long strings of words as complete thoughts, but even then I can quote you all I like as long as I give credit.

If one could copyright a joke, countless comedians would have no possibility of a career. Jokes are remade over and over and over, in addition to being simply stolen between acts. (Intentionally avoiding digs at comedians known to steal other people's jokes.)

Re:Simple

[tomxor]

No

Similarly, you can't Copyright a word, or a string of words.

What... like a book?>

There is not hard line of "originality" the brain is input output with an arbitrary amount of processing, cases argue originality of creative works all the time, and everytime they draw an arbitrary line, so "can you copyright a joke"? that's subjective, it depends on the case, it depends on the Judge. (Yes copyright makes no sense)

Re:Simple

[orgelspieler]

You can copyright anything that you have created that has been recorded in some fashion, including a "string of words." If I wrote down a novel and creative joke and published it, and somebody performed the joke in public, they infringed my copyright. I'm rather curious how this will pan out, because Stephen Colbert's writers have been "stealing" material from @midnight, and that would make for a great lawsuit!

Re:Simple

[phantomfive]

The judge already ruled in this case, the answer is, "Yes." Sucks, but here's the quote from the article:

The jokes written by Kaseberg and O'Brien's staff, the judge ruled, are "sufficiently objectively virtually identical" in those three instances. To win, Kaseberg's lawyers will need to show that the defendants "willfully infringed Plaintiff's copyrights."

It's unfair but tbh I have trouble working up much outrage about it.

Re:Simple

[s.petry]

No

Similarly, you can't Copyright a word, or a string of words.

What... like a book?>

Selective reading at it's finest. Try not cherry picking points to make non-existent arguments with.

There is not hard line of "originality" the brain is input output with an arbitrary amount of processing, cases argue originality of creative works all the time, and everytime they draw an arbitrary line, so "can you copyright a joke"? that's subjective, it depends on the case, it depends on the Judge. (Yes copyright makes no sense)

A joke is not just a string of words. A joke is delivery, context, relevance to history/current events, etc... This is why jokes are recycled over and over again over generations. No, you can't copyright a joke. It is material that already exists in the public domain. If you have to go judge shopping to get the answer you want, it is an immoral position to hold.

Re:Simple

[Chris Mattern]

But when you paraphrase a joke, it doesn't usually lose anything

Well, sometimes. "Make like a tree and get out of here!" But you've touched on the heart of the matter. Copyright covers the exact representation. If somebody repeats your joke word for word, you may have a case. If they just use the idea, but use their own words, you don't. You can't copyright ideas.

Re:Simple

[Dog-Cow]

It is material that already exists in the public domain.

I don't like the idea of copyrighting jokes, either, but this argument is just plain wrong. Stories of all sorts have existed for centuries, or longer, but adaptations get copyright all the time. In this sense, jokes are just short stories.

Re:Simple

[dgatwood]

There once was a man from Nantucket...

who copyrighted a bucket.
The judge tossed the case
as moot on its face
and he heard the next case on his docket.

No?

Re:Simple

[dougmc]

Similarly, you can't Copyright a word, or a string of words.

You absolutely can copyright a string of words, if it's long enough. And they don't have to be complete thoughts, either.

Here's a quick summary of what can and can't be copyrighted (page 3.)

Actually, based on existing law ... I'd say that jokes can be copyrighted as long as they've been recorded somehow -- written down, recorded audibly, etc. and especially if they've been published. One might argue that a really short joke ("Three guys walk into a bar. The fourth one ducks.") is too short, but a longer one? Like "The Aristocats"? Seems eligible to me.

Of course, the courts may see it differently, but I guess we'll see ...

You can copyright very long strings of words as complete thoughts, but even then I can quote you all I like as long as I give credit.

You have a strange view of copyright law.

{The entire text of the Harry Potter series} --J. K. Rowling

Of course, that's not what you meant, but it is basically what you said ...

What you seem to be referring to is "fair use". It certainly exists, but you've greatly oversimplified it.

Re:Simple

[s.petry]

It absolutely does matter if it's immoral. In the case of a law being immoral it is up to members of society to point out the immorality and demand change to law. This happens regularly in a direction against the populace, but does occasionally happen in the other direction (an should). Complacency in the face of immorality makes the complacent just as guilty as the oppressor.

Re:Simple

[HiThere]

And there are even "short stories" that are shorter than most jokes.
E.g.
"The last man on earth sat alone in a room,
There was a lock on the door."
I believe that's Frederick Brown (Wikipedia says he said "knock").

I believe this is now out of copyright, but it certainly was originally copyrighted. So length is not the sole criterion. And I also believe that this would be fair use in any case, as the entire work is necessary to make the point, and it's considerably shorter than this post. And this is well removed from the original context (The Magazine of Fantasy and Science Fiction).

This may be significant for jokes, also. Often the changes to a joke are substantial, if only because of the changed context. And sometimes one could argue that a modified joke is a parody of the original.

But, in principle, I'm rather certain that a joke could be copyrighted. The question would usually be "Exactly what does the copyright cover?" as most "new" jokes are small modifications of pre-existing jokes, often placed in a new context. (But what was the original "light-bulb joke" a modification of? What was the original "elephant joke" a modification of? Would copyright of one elephant joke mean that the entire genera was under copyright?)

Re:Simple

[Roger W Moore]

I believe this is now out of copyright, but it certainly was originally copyrighted. So length is not the sole criterion.

Correction: somebody claimed it was copyrighted. IANAL but unless that claim was tested in court it does not provide any evidence that length is not a factor in copyright law. Indeed there is strong evidence to the contrary since single words cannot be copyrighted. So all we know is that the length criterion is somewhere between one word and the lyrics to a song. However, I expect any length criterion depends strongly on context.

With a joke though things are different. The length does not matter because what is funny is the idea/situation the joke conveys and you cannot copyright ideas only an expression of that idea. So while you might be able to copyright the text of the original joke it would be easy to make very significant changes to the expression while preserving the idea.

Re:Simple

[sootman]

> No?

No. The meter's off. :-)

There once was a man from Nantucket
Who told all his lawyers to suck it.
He took a big toke,
Gave up on his joke,
Got really high and said "fuck it."

Re:Simple

[Frobnicator]

There are a few short works that have been fought in the courts. It is clearly a literary work, and it would probably qualify for originality. The question here is mostly about length.

The law doesn't specify a minimum length. Courts have ruled for coverage on works with only a few hundred words. There are children's books with under a hundred words that no lawyer would challenge over copyright protection. Daft Punk's lyrics to "Around the World" have registered copyright protection even though it is only three words repeated, although who knows if the courts would accept it.

Assuming this survives a trial, it would be interesting to see how it ends up. My guess is that judges would ultimately base decisions on the nature of the original creative work and the nature of the reuse, with the length being mostly irrelevant.

Damages in this case would be quite low as there is minimal economic harm and the joke probably was not subject to a registered copyright. But if the protections were allowed and many people registered copyrights on small jokes, they could be little landmines, which is the fear people (especially lawyers) have.

Even so, there is no clear answer.

Re:Simple

[tomxor]

It absolutely does matter if it's immoral. In the case of a law being immoral it is up to members of society to point out the immorality and demand change to law.

The law is immoral and should be changed? what copyright law? having you been living on mars under a fucking rock - you can't change copyright unless you are at the table, and "people" will never be at the table, even if you were you can't tweak this law into morality, it is a flawed concept that will converge into stupid shit like this on one hand and DRM for books on the other.

The only thing you can do is not play the game, let the petty people fight over what can and can't be copied and who gets paid what, the rest of us will move on. By all means try to play their game though.

The point I was trying to make which I honestly thought I got across in my first post is that copyright is flawed, I would have thought any Slashdot reader would not need to be given examples of why. Excuse the ad hominem

Re: Simple

[Hognoxious]

Copyright can cover ideas

No it can't. It covers expressions of ideas. And no, that's not the same thing.

https://www.copyright.gov/help...

Re:Simple

[Scarletdown]

Stop me if you've copyrighted this one:

There once was a man from Nantucket...

Whose limericks never did rhyme.
Try as he might,
He could not get them to work out properly.
So he gave up and left to do something more useful.

Re:Simple

[SeaFox]

care to explain this one ?

There once was a fellow named Guignol.
Who didn't get the limerick at all.
"Please explain?" he said.
But we'd all gone to bed.
And he was left with a humor quite small.

In other words...

[Fire_Wraith]

So you're saying copyright is a joke?

Carlos Mencia is going to be out of a job

[HumanWiki]

If you can copyright jokes...

or will end up owing a ton of money to people that are actually funny.

Copyright this

[93 Escort Wagon]

Zwei peanuts were walking down the strasse. One was assaulted... peanut.

Re:Copyright this

[mrbester]

Wenn ist das Nunstück git und Slotermeyer? Ja! Beiherhund das Oder die Flipperwaldt gersput!

"Recipes" are a handy analogue here

[Valacosa]

Probably not. This feels similar to the copyright situation surrounding recipes.

You can't copyright a recipe. You can copyright a particular description of a recipe, which is why many recipes come with flowery descriptions and pretty pictures. Those can be copyrighted. But the thing itself, the list of instructions, cannot be.

By the same token, it'd be unsurprising if the courts found that particular wordings or diagrams can be copyrighted, but the joke itself -- the end product -- cannot be copyrighted.

Conan isn't a hack, he's genuinely funny (IMHO). This is probably coincidental. Somewhat related (from Zach Wiener): An Open Letter to Sarah Silverman

I'm not so sure ?

[King_TJ]

Unfortunately, though I can already imagine all sorts of bad scenarios that will come about from granting jokes copyright protections .... I'm not sure there's a strong argument to prevent the lawyers from hopping aboard this gravy train?

A professional comedian is essentially paid to deliver jokes and skits that make an audience laugh. In most cases, this is done with memorized lines, scripted and honed over time. In many situations (like late night TV), the host doing a bit of stand-up comedy as part of the show is using jokes purchased from writers who make the material for them.

So in that sense, yes - jokes have monetary value and it's customary to pay people to provide them for you.

Obviously, the DELIVERY of the lines is also a part of what makes a comedian "good" (and worth paying to see). But the same could be said for musical performances. We still extend copyright protection to songs, despite the fact that individual artists bring something unique when they perform them.

With the current Admin anything's possible

[rsilvergun]

There's a major sea change going on to a much, much more pro-corporate environment. One of America's biggest products is IP so it's not surprising to see stronger copyright law. As our courts get stacked with more and more pro-corp appointees expect to see changes.

Re:Not sure about this...

[HornWumpus]

'Who's on first' was a vaudeville standard. Many comics were _pissed_ when Abbot and Costello did it on TV, making it 'theirs' forever.

Knock, knock

[PPH]

Who's ther.... [DMCA Takedown notice received]

The Aristocats!

[xbytor]

> Like "The Aristocats"? Seems eligible to me.

Nope. The thing about the Aristocrats is that every comic does their own version. The arch of the joke and the last line is the only thing each version shares. The details are unique to the comic.