Every year we gather to celebrate Father’s Day to thank our dads for all they do for us during the course of the year. Maybe it’s their love and affection or maybe it’s their handiness or financial support. One thing almost all dads do but never get thanked for (possibly for good reason) is that they often crack what are commonly known as “Dad Jokes.” As we look to celebrate Father’s Day 2022 and in the spirit of recognizing our fathers’ efforts at coming up with these jokes, we at the Copyright Alliance thought it was time for us to examine jokes in copyright law more generally.
Jokes and Copyright Law: Are Jokes Copyrightable?
Merriam-Webster defines a joke as “something said or done to provoke laughter— especially: a brief oral narrative with a climatic humorous twist.” What qualifies as a joke can vary widely, A joke can be a brief one-liner, or a series of jokes can build up a whole comedic routine or sketch.
Because of the variety of ways that a person can tell a joke, jokes often fall into many different categories of works protected under the Copyright Act. They might be written down and thus qualify as a literary work. The jokes might be performed during a recorded comedy special and be protected as an audiovisual work. Audio only comedy albums have been popular since sound recordings were possible.
Whether copyright law protects a joke depends on whether the joke satisfies the requirements for copyright protection—specifically, the joke must be an original work that is fixed in a tangible medium. The latter requirement is not difficult to meet. Jokes are now often memorialized in text, audiovisual works, audio/podcasts, images, and other forms of mediums through which other people can perceive the joke again. Where a joke might fall short of that requirement, is when a comedian performs a joke to an audience, and no one records it. But the originality requirement under copyright law is where it becomes trickier to determine whether a particular joke can be protected by copyright.
Can Jokes Be Original?
Originality under the Copyright Act, is not the same as the common, everyday understanding of what it means to be “original.” Originality in copyright law does not require novelty— it only requires that the joke not be copied and the expression in the joke be minimally creative. Because the threshold for creativity is extremely low, it helps to examine the limits of copyright law. For jokes, the limitations can exist in various elements comprising a joke, including the setup and delivery structures or punchlines that necessarily come out of a joke.
Structure and Format of Jokes
Chances are, that you’ve probably heard of a joke that starts off with the line “so and so walks into a bar . . .” or with the lines “knock knock/who’s there?” These simple set up and delivery structures or methods, standing alone, are usually not protectable under copyright law because they are abstract, general ideas and methods of telling an effective joke. The idea expression doctrine in copyright law, states that such ideas, facts, and methods are not elements protected by copyright law.
However, a joke which incorporates these unprotectable common structures or formats can still be protectable if the jokester alters or tweaks it with their own creative decisions and expressions. After all, jokes are essentially stories that are just told with a humorous purpose, and all stories need a structure and format to drive the narrative forward. A jokester may add or change characters in the “walks into a bar” joke by changing the occupations or types of people in the storyline or add twists and turns to a structure and format which may amount to creativity that is protectable under copyright law.
The district court for the Southern District of California in Kaseberg v. Conaco, noted that the protectable element of plaintiff’s, Alex Kaseberg, two to three lines joke was in his expression in telling a “fictional [scenario] of the Oakland Raiders hearing [the] news [of the University of Alabama-Birmingham’s football program shutting down its operations] and then commenting ‘Wait, so you can do that?’” But the unprotectable element of the “UAB Joke” was in the joke’s format and structure” in recounting a beleaguered sports team hearing news of a college football team shutting down operations, uttering the disbelief, and then expressing the desire to also shut down their own operations. The court then went on to note that defendant, Conan O’Brien’s, joke used this similar joke structure, but expressed it from the point of view of the “fans (rather than team members) of a different team—the New York Jets—hearing the news and then commenting ‘wait, can you do that?’”
But there are times when a joke’s format and structure may be minimally creative to be protectable as seen in Foxworthy v. Custom Tees. The district court for the Northern District of Georgia found in this case that comedian, Jeff Foxworthy’s, “redneck” jokes were copyrightable, creative expressions. In his career, Foxworthy created calendars, t-shirts, and comedy albums for his signature jokes, many which followed the format “You might be a redneck if . . .” which would be followed by a humorous punchline. When the court found that Foxworthy’s joke format was protectable, it specifically quoted to a statement Foxworthy made in a hearing for the case:
‘A joke is […] a strange thing. And probably to the public, they never realize this. But I have—with a comic, we all have the same bowl of words to work with, and the whole trick is to take the smallest amount of words and put them in the proper order. You know, I’ve sat backstage with Jay Leno or Gary Shandling and sometimes for ten or fifteen minutes argued about a particular one line in a joke, which word should go where, should you delete this, which word should go to the end of the joke, and so that’s why it changes. I mean, it’s to get the maximum laugh from, you know, the shortest amount of material.”
Another copyright doctrine that may limit the copyrightability of a joke is the doctrine of scènes à faire. The scènes à faire doctrine states that some expressions necessarily arise from or follow from a certain the general time, setting, or framing in which the work takes place. For example, in a traditional knock-knock joke, the back-and-forth conversation and certain lines like “who’s there”? necessarily arise out of the fact that this is what normally occurs and is said when someone is answering the door. For a joke that contains elements where it is naturally arises from the place and setting of that joke, these elements would not be protected by copyright law.
Subject Matter of Jokes
Besides the structure and format of a joke, the subject matter addressed in the joke can also affect how a joke is told. Different comedians repeatedly tell jokes about the same subjects or events, but with their unique spin or perspective on it. But because of the idea-expression doctrine, copyright law doesn’t protect a joke just because the comedian covers a specific topic or plays on certain ideas. Instead, copyright law protects the comedian’s unique iteration and expression of those ideas.
For example, the court in Kaseberg found that the several jokes created by the plaintiff fulfilled the originality requirement—jokes which touched on popular news and current events. The court found that one of the plaintiff’s jokes of how “one fictional Bruce Jenner street would ‘have to change from a Cul-De-Sac to a Cul-De-Sackless’” was a creative way to frame the facts of “Bruce Jenner’s then-recent sex change and the resulting effect on towns with streets named ‘Bruce Jenner.’” The court also found that the plaintiff’s joke about the Washington Monument creatively framed the news report that the landmark was found to be actually 10 inches shorter than previously established, by joking that the “Washington Monument could “suffer[ ] from shrinkage[,]”implying that the Monument is therefore an actual phallus.” The court also found that plaintiff’s joke, taking Tom Brady’s comment that he wanted to give the truck he was awarded as MVP to the man who won the game for the Patriots,” was protectable under copyright law because the joke “impl[ied] that a fictionalized Tom Brady would [with no doubt] . . . give his [MVP award] to the coach of the opposing team, Pete Carroll.” In fact, the U.S. Copyright Office agreed with the court when it reversed its refusal to register the “Tom Brady Joke,” stating that the two sentence joke did indeed exhibit the minimal amount of creativity required under copyright law.
Joke Theft or Infringement?
In the comedy world, joke theft is no laughing matter, since comedians work hard to come up with unique and fresh routines and acts to keep audiences surprised and delighted with the punchlines. Understandably, it’s upsetting when a crowd-favorite joke created by one comedian suddenly appears in another comedian’s material.
There are many times, however, when a joke theft accusation concerns the theft of ideas or concepts for a sketch or routine. But as previously discussed, another comedian’s use of these general abstract elements of a joke usually does not amount to copyright infringement because they are not protected due to various copyright law principles like the idea expression doctrine. Ultimately, whether someone infringed on someone’s copyright in a joke depends on whether the joke stealer copied the protectable expressions and creative decisions of the original joke creator. There are very few joke infringement cases. But the few cases that do exist clearly illustrate that these works are indeed protectable and that it is possible to make infringement claims for stolen jokes.
When evaluating copyright infringement of the jokes, the court in Foxworthy found that though both Foxworthy’s and Custom Tees’ jokes played on the ideas of the qualities and characteristics of a typical “redneck,” Custom Tees had “clearly copied [Foxworthy’s] [copyrightable] expression verbatim.” The court noted that Custom Tees’s jokes would simply use a slightly different format of Foxworthy’s redneck jokes. For example, Foxworthy’s joke would go: “You might be a redneck if you’ve ever financed a tattoo” while, a copy for a Custom Tees t-shirt read “If you’ve ever financed a tattoo … you might be a redneck.” The court was persuaded that this level of similarity between the jokes qualified as copyright infringement.
For the court in Kaseberg, it found infringement where was almost identical similarity between the plaintiff and defendant’s jokes, namely the “Jenner Joke,” “The Washington Monument Joke,” and “Brady Joke.” However, for the “UAB Joke” the court found that there were enough differences between the two versions and held that there was no infringement since the defendant, Conan O’Brien, had expressed his version of the joke from the point of view of the fans (rather than team members) of a football team that was different from the team mentioned in the plaintiff’s joke. Again, the Kaseberg court’s reasoning for finding no infringement for this particular joke highlights the differences that jokesters should keep in mind, that it cannot be copyright infringement where nonprotectable elements are being used.
Good jokes involve a slew of techniques whereby the jokester makes deliberate, creative decisions to express complex stories, facts, or ideas in surprising and unexpected ways to humor an audience. These kinds of decisions and expressions are what copyright law is designed to protect. Now knowing how difficult the craft of comedy can be, maybe during Father’s Day 2022, you just might want to applaud Dad for those corny Dad joke he came up with.
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