Entertainment & Media Law Signal : Canadian Entertainment Lawyers for Licensing, Intellectual Property & New Media Matters

The good folks at the Lawyers Weekly have published a short piece of mine (in their July 1, 2011 issue) which reflects further on the topic of copyright in jokes - the full text of the article can be accessed here, and the opening paragraphs are below:

What is reputedly the world’s shortest joke clocks in at a mere two words: “Pretentious? Moi?”

Though jokes may seem an incongruous (even humorous) subject for intellectual property (IP) law, examining the extent to which protection is available for jokes provides an opportunity to reflect on a variety of issues relevant to copyright reform debates.

Theoretically, there is no reason that a joke cannot be protected by copyright, so long as it meets the generally applicable requirements: the expression must be original and fixed in some tangible medium. For jokes which are delivered only verbally, the lack of fixation will be a barrier to protection. The law generally shies away from according copyright protection to titles and short phrases for fear that a limited monopoly will be asserted over basic elements of expression — and for similar reasons, short jokes would be unlikely to obtain protection.

Previous Signal coverage on the topic of copyright in jokes is collected here.

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To what extent is "I was just joking" a defence to a defamation claim?  Laura Little has written "Just a Joke: Defamatory Humor and Incongruity's Promise" (available at SSRN), which explores the ways in which courts have addressed "humour" in US and Australian defamation law.  The topic can be of particular interest for entertainment lawyers who are called on to review and assess potential liability for jokes contained in screenplays, written materials (such as books or columns) and audio-visual projects.

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Further to an earlier posting here at the Signal (Copyright In Jokes), Nathan Fan, writing at IPilogue, has penned a thoughtful piece on topic: Whose line is it anyway? IP Norms in Stand-Up Comedy.  Fan's piece also does a nice job of summarizing some of the norms identified in Dotan Oliar and Christopher Sprigman's "There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy" (citation: 94 Va. L. Rev. 1787 (2008)).  Fan's final paragraph is particularly thought-provoking:

As communication technology continues to advance, there is a growing fear of having one’s perfectly crafted joke stolen.  First, the radio and television allowed a joke to be broadcast across a nation. Now with the use of YouTube and Twitter, a comic’s first performance could be posted to millions on the internet by the following morning. It seems that the stand-up community’s ability to self-police was at least partially due to its tribal, communal nature. All of the major acts know each other and cross each other’s paths. But with the ability of a joke to easily cross borders and cross oceans, such a self-policed system becomes much more difficult to employ. However, stand-up’s normative system has some hope of surviving as it could foreseeably utilize the Internet itself for its sanctioning purposes (e.g. YouTube is rife with videos alleging joke-thievery). Nonetheless, the stand-up comedy community has put a spotlight on the fact that some creative communities are being better served by informal normative regimes than by the traditional legal system. Perhaps other creative communities  can learn a thing or two from stand-up comedy.

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Wikipedia maintains a "World's Funniest Joke" page - of the three currently on offer, this joke, which apparently won top honours in the UK, is my favourite:

A woman gets on a bus with her baby. The bus driver says: "That's the ugliest baby that I've ever seen. Ugh!" The woman goes to the rear of the bus and sits down, fuming. She says to a man next to her: "The driver just insulted me!" The man says: "You go right up there and tell him off – go ahead, I'll hold your monkey for you."

You can never go wrong with including a monkey in a joke.  So - what intellectual property rights, if any, protect that joke?  Could the originating comedian or writer of that joke sue for copyright infringement if someone "stole" the joke?

CBC Radio's Jian Gomeshi, on the Q program, hosted an interesting discussion on April 20, 2010 (podcast is available here - the discussion starts at about 01:45 of the episode) on the topic of copyright in jokes, and spoke with Dotan Oliar and Christopher Sprigman, the authors of the article "There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy" (citation: 94 Va. L. Rev. 1787 (2008)).  As the abstract for the article notes:

In this paper, we analyze how stand-up comedians protect their jokes using a system of social norms. Intellectual property law has never protected comedians effectively against theft. Initially, jokes were virtually in the public domain, and comedians invested little in creating new ones. In the last half century, however, comedians have developed a system of IP norms. This system serves as a stand-in for formal law. It regulates issues such as authorship, ownership, transfer of rights, exceptions to informal ownership claims and the imposition of sanctions on norms violators. Under the norms system, the level of investment in original material has increased substantially. We detail these norms, which often diverge from copyright law's defaults.

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