No Laughing Matter: Can You Copyright A Joke?

from the knock-knock dept

Last year there was a bit of a fuss when comedian Joe Rogan accused Carlos Mencia of stealing jokes. Amusingly, Mencia responded to the claims of plagiarism by using a copyright infringement claim to get Rogan's video of the accusation taken down. However, in a more detailed discussion of the issue, we pointed out how silly it is to claim a copyright on a joke. There are a ton of joke books out there, many of which collect all kinds of jokes that have been told by many people, without bothering to find the originator and pay them (or even credit them). In fact, with most jokes, it's not the joke that matters, but the delivery. As I noted, I had recently read Isaac Asimov's "Treasury of Humor" where he admits that almost all of the jokes are ones he heard from others -- and no one seemed to think it was infringing.

However, that didn't stop Jay Leno and some other comedians from suing a woman who published a recent joke book that included some Leno jokes. Rather than go through a lawsuit, the woman and her publisher quickly settled the lawsuit paying an undisclosed sum and publicly apologizing. This leads William Patry to put together some details of other court cases looking into the copyrights of jokes, noting that Jeff Foxworthy sued someone for using his jokes, even though he admits people send joke ideas to him that he uses.

All of this seems to be an unfortunate extension of the increasing use of copyright to "control" every last use of content. Telling jokes is a social experience, often having little to do with the material itself, and quite a lot to do with the performance and delivery. Witness the movie The Aristocrats, where the entire premise is getting a bunch of different comedians to all tell the same joke, and looking at the different performances and embellishments. No one screamed about copyright infringement in that case -- and the comedians seemed to relish the chance to tell the same joke in many different ways. It's unfortunate that we're now reaching the point that something that used to be a shared experience is also going down the path to being protected and limited.

Filed Under: carlos mencia, copyright, isaac asimov, jay leno, jeff foxworthy, joe rogan, jokes

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  1. identicon
    rob k, 29 Oct 2009 @ 4:16pm

    First, I am not a lawyer nor have I ever played one on TV. But I like writing parodies and so have looked at copyright laws quite a bit.

    It would seem to me that what is called the "Merger Doctrine" would apply in the case of jokes. The merger doctrine says basically this.

    You can't copyright an idea, only the way you put that idea into words.

    Some ideas can only be expressed in a few ways.

    If someone was given a copyright on one of these few expressions of an idea, it would also give them a monopoly on the idea itself. (a copyright being a limited monopoly)

    Since you cannot have a monopoly on an idea (the purpose of the copyright law being to promote knowledge and not protect people rights to their materials- its in the US Constitution no less!) you cannot copyright an expression of an idea if there are only very limited ways to express that idea.

    The idea and the expression of that idea are said to be "merger" hence the term "merger doctrine."

    Jokes seem to fall into this catagory. They are short expressions of ideas. It would seem that their are very limited ways to express the ideas in a joke, so those expressions are given limited, if any copyright protection

    Here is the way someone else put it.

    "In United States copyright law, the merger doctrine holds that if an idea and the way to express it are so intricately tied that the ways of expression have little possible variation, there will not be copyright infringement, lest the copyright prevent others from expressing the same idea. The overall principle is that of the idea-expression divide, where you can copyright an expression but not an idea."

    By the way, copyright law only applies to something in fixed form, that it, if it is written down or recorded. If you tell an original joke, but is is not written down or recorded, then anyone can steal it write it down and claim it as their own. Leno is ok because they most likely have a script and the show is "taped," but he should lose on the merger doctrine because there only limited ways to say the things expressed in any of the jokes he tells.

    Of course, if you copy him word for word, and hundreds of jokes, you might be in trouble if you don't have his/ the networks permission.

    Comments, particularly from lawyers, are welcome.

    rob k

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