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Can You Copyright a Joke? (npr.org) 230

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?
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Can You Copyright a Joke?

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  • by Anonymous Coward

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

  • Simple (Score:4, Insightful)

    by s.petry ( 762400 ) on Wednesday May 17, 2017 @01:06PM (#54435507)

    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 (Score:5, Informative)

      by tomxor ( 2379126 ) on Wednesday May 17, 2017 @01:14PM (#54435593)

      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: (Score:3, Insightful)

        by s.petry ( 762400 )

        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 (Score:5, Insightful)

          by Dog-Cow ( 21281 ) on Wednesday May 17, 2017 @01:50PM (#54435941)

          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.

          • by HiThere ( 15173 )

            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 re

            • 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

              • by Frobnicator ( 565869 ) on Wednesday May 17, 2017 @03:42PM (#54436741) Journal

                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.

        • by tomxor ( 2379126 )

          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.

          It doesn't matter if it's immoral, this is not about my opinion, I pretty much hate all copyright FYI... my point is YOU don't get to say if it's copyrightable, because what constitutes copyrightable work is continually pushed in courts, that's why people DO go shopping for judges, because the definition of creative work is subjective. There is no hard, objective, quantitative line to draw where you can say "that's not creative enough" which is why the entire premise is bound to devolve to the level just ab

          • by s.petry ( 762400 )
            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.
            • It's an immoral act to let a sucker keep his money.

              We need a new law to reflect this.

              • by s.petry ( 762400 )
                If enough members of society agree with you, you could have your way. Fortunately the majority of society is moral so laws like this have to be hidden in backdoor rulings and judge shopping. Too bad you can't see the need for basic logic and reason.
                • A sucker and his money were lucky to get together in the first place.

                  The most moral outcome is for the suckers money to go to the most deserving, which is me, by definition.

            • by tomxor ( 2379126 )

              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 wha

        • > If you have to go judge shopping to get the answer you want, it is an immoral position to hold.

          I agree completely.... but what does morality that have to do with the law?

      • so "can you copyright a joke"? that's subjective, it depends on the case, it depends on the Judge. (Yes copyright makes no sense)

        Well, if it is written in a tangible medium, then yes it can be copyrighted. If it is just a tell-tell, then I am afraid it is not. Though, if one copyrights a joke, then it is against its purpose and it won't be a joke anymore...

        From here [uspto.gov]...

        Copyright is a form of protection provided by U.S. law to the authors of "original works of authorship" fixed in any tangible medium of expression. The manner and medium of fixation are virtually unlimited. Creative expression may be captured in words, numbers, notes, sounds, pictures, or any other graphic or symbolic media. The subject matter of copyright is extremely broad, including literary, dramatic, musical, artistic, audiovisual, and architectural works. Copyright protection is available to both published and unpublished works.

    • Re:Simple (Score:5, Insightful)

      by orgelspieler ( 865795 ) <w0lfieNO@SPAMmac.com> on Wednesday May 17, 2017 @01:17PM (#54435631) Journal
      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!
      • But when you paraphrase a joke, it doesn't usually lose anything - the novel/creative part is in the structure and not the wording. No matter which way it goes, there are few original jokes. Yet an obvious rip-off from something recent should maybe have some merit as a violation.

        Jokes are really a method more so than content. While you could copyright a particular implementation of wording, the method could possibly be patented - if it's a novel joke. Again, there's LOTS of prior art out there. But les

        • 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.

    • 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.

      • by s.petry ( 762400 )
        And it will be appealed and should be. The law should not favor a little guy suing a big guy any more than the reverse. Comedians with a reputation for stealing jokes become the brunt of them, and lose audiences.
        • And it will be appealed and should be. The law should not favor a little guy suing a big guy any more than the reverse.

          This is a statement of preference. While I largely agree with your preference, it is not a statement based on the law.
          The judge however did make a decision based on law, which is why you should be worried.

    • 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:Simple (Score:5, Informative)

      by dougmc ( 70836 ) <dougmc+slashdot@frenzied.us> on Wednesday May 17, 2017 @01:57PM (#54435983) Homepage

      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 [copyright.gov] (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.

      • The Aristocats! (Score:5, Insightful)

        by xbytor ( 215790 ) on Wednesday May 17, 2017 @03:01PM (#54436439) Homepage

        > 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.

        • It sounds like you're saying they're derived works of the original Aristocrats joke.

          If I make a video that starts out with a mouse named Mickey (or a crime fighter named Batman, or a mafia guy named Corleone) who happens to experience totally difference hijinx than he does in any Disney video, lawyers still say that's a derived work of their client's copyrighted work. And that's going to have a lot less in common with anything Disney, than what all Aristocrats jokes have in common.

    • > You can copyright very long strings of words as complete thoughts

      how is a joke not that?

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

      Really? Not even a string of about 75,000 words? Printed on bits of dead tree, for example?

      • by s.petry ( 762400 )
        The amount of people like you, who cherry pick a sentence from a post to argue with, is quite disturbing. I get that reading and comprehension skills are down across the US, but holy hell! There are a total of 3 sentences in that paragraph, and you can't get past the first!
    • by uncqual ( 836337 )

      but even then I can quote you all I like as long as I give credit.

      No, it's not that simple. You can't, for example, take a Harry Potter book, make verbatim (i.e., "quote you all I like') copies and add a cite to the last page of your copies that gives credit to J. K. Rowling and then sell the copies.

      Fair use is allowed of course so you can write a book review which includes quoting a couple paragraphs from a Harry Potter book and sell your review of the book to others.

    • 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're confusing Copyright with Plagiarism.

    • by qeveren ( 318805 )

      A novel is just a string of strings of words. Why should that be copyright-able?

    • by dszd0g ( 127522 )

      What would make the most sense to me is that they are covered by copyright but with a fair amount of fair use leeway.

      Telling a single short joke from a comedian should be covered by fair use. It would be too easy for accidental copyright infringement without some leeway here.

      However, if someone steals numerous jokes from a book, a movie, a blog, or a youtube video that should be copyright infringement. If they do it for commercial purposes, there are clearly damages that should apply. The person who stol

  • by Fire_Wraith ( 1460385 ) on Wednesday May 17, 2017 @01:08PM (#54435521)
    So you're saying copyright is a joke?
  • by HumanWiki ( 4493803 ) on Wednesday May 17, 2017 @01:08PM (#54435533)

    If you can copyright jokes...

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

  • by 93 Escort Wagon ( 326346 ) on Wednesday May 17, 2017 @01:14PM (#54435597)

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

  • by Valacosa ( 863657 ) on Wednesday May 17, 2017 @01:14PM (#54435599)

    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 [youtube.com]

    • What I don't understand is why recipes can't be patented. They are an implementation method for something novel (if it truly is novel and there is no prior art - like say the cronut).

      • by bws111 ( 1216812 )

        Recipes can be patented. But with thousands of years of cooking behind us, it will be very difficult to show that any given recipe is both novel and not obvious. This is why recipes are protected with trade secrets instead of patents.

        • Sounds like this is a good parallel for jokes then after all.

          • by bws111 ( 1216812 )

            Except we are not talking about patenting jokes, we are talking about copyright.

            • But like recipes, there's no way you're going to copyright a joke. Not the structure and delivery - only the specific wording of one telling. That is OP's point.

              • Could you copyright the names of the players in 'Who's on first'? Just as an example...

                A significant # of jokes are just plays on words. Those specific words could be copyrightable.

                • Unless you're literally retelling the joke, you're probably making reference to the original joke in some sort of commentary/parody - which is protected as fair use.

    • Right, if you copy the joke word-for-word it's a violation. If you tell the joke in your own way, it's not. Why does this need to be so complicated?
      • by arth1 ( 260657 )

        Right, if you copy the joke word-for-word it's a violation. If you tell the joke in your own way, it's not. Why does this need to be so complicated?

        In the case of puns, you can't reword it[*] much without losing the joke. In those cases, it might be a pun-ishable violation.

        [*]: A good pun is its own reword.

    • I can't agree. Jokes aren't recipes for laughter. Copying a sequence of steps won't violate anyone's copyright, that is true, but copying an expression of something uncopyrighted is infringement. It's the expression that makes the joke funny, in most cases.
    • by bws111 ( 1216812 )

      Recipes can't be copyrighted because they are just a statement of facts, and statements of facts can not be copyrighted. Jokes are not statments of facts, they are creative works.

      • by PCM2 ( 4486 )

        I can think of scenarios where recipes could be copyrighted; say, if they include a lot of flowery, descriptive language, or are written in a funny way, or they interpolate the author's personal anecdotes.

        A mere list of ingredients, however, absolutely cannot be copyrighted. And if you took the highly-descriptive recipe mentioned above, stripped out all the fancy language and just left the directions, that would probably not be considered a derivative work, either. It would still just be a list of ingredien

    • by Kjella ( 173770 )

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

      Pretty sure it's not. Copyright doesn't protect functional elements, like you can copyright the design of a car wheel but if you tried to claim the location and size of the bolts was infringing the court would reject it because they're functional requirements to attach the wheel to the car - that's why proprietary connectors are usually patented. Same with recipes, adding the same ingredients in the same order are functional elements to creating the same dish. To create an emotional response is not a "funct

    • Songs are the closer analogue. The performance, the lyrics and any derivative works of a song can all be protected by copyright.
  • https://en.wikipedia.org/wiki/... [wikipedia.org]

    Where Conan and his "staff" walked away with 45 Million dollars for "doing nothing". Just pure negotiations about a cancellation of a contract. And another 1.5million$ score: http://www.nydailynews.com/ent... [nydailynews.com]

    And we could go on, Conan...he's in love with the money, and at best - a very mediocre comedian.

  • I mean, what would this have meant for the career of Milton Berle?
    • 'Who's on first' was a vaudeville standard. Many comics were _pissed_ when Abbot and Costello did it on TV, making it 'theirs' forever.

  • I'm not so sure ? (Score:5, Interesting)

    by King_TJ ( 85913 ) on Wednesday May 17, 2017 @01:20PM (#54435661) Journal

    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.

    • >

      ... all sorts of bad scenarios that will come about from granting jokes copyright protections ...

      Imagine a politician copyrighting all the possible jokes which could be made at their expense. That would be quite chilling.

    • Musicians pay to perform songs, usually a professional musician who performs for small audiences will join an organization like ASCAP to handle obtaining rights to music in order to legally perform.

      If jokes are copyright, then the same sorts of organizations that musicians have used over the last several decades may also be appropriate. That means comedians will have a slice of their income taken out by these somewhat bureaucratic organizations.

  • If someone would copyright the word "copyright", than we don't need to hear about this stuff anymore.
  • Let's just crank it all the way up on this intellectual property stuff. Sue everyone, nobody makes any money, and everyone is afraid to even hum a tune while driving. Only then will average people actually give a shit about copyright, patent and trademark reform.

    • There are lots of exceptions for copyrights. No one is going to sue you for humming a tune, because the money they would recover would be unworthy of the effort. Your lack of knowledge of the law isn't a reason to dispose of it.
  • If his twitter [twitter.com] is any indication, I'm not sure what decent material there was to steal.

  • Are jokes covered by copyrights? The answer is a resounding "yes", because they are "works of authorship" covered by the USC.

    Can you "copyright" one? That's nonsensical, because the rights begin the moment the joke is told or written down. The author of a joke doesn't need to apply anywhere to get copyrights.

    Did O'Brien infringe Mr. Kaseburg's copyrights? Well, perhaps, but proving that O'Brien got his material from Kaseburg might be difficult. Proving similarity isn't enough, because O'Brien could h
    • by PCM2 ( 4486 )

      Can you "copyright" one? That's nonsensical, because the rights begin the moment the joke is told or written down. The author of a joke doesn't need to apply anywhere to get copyrights.

      Some of the rights, yes. Not necessaily the right to sue for monetary damages.

      • That's like saying that you don't have a right to throw a misbehaving drunk out of your bar until he gets drunk and misbehaves. The right to throw drunks out of bars exists prior to the act, just as the right to enforce copyrights exists before infringement.
  • But I offended the Beavis and Butthead crowd earlier today.
  • When will Americans come to their senses and realize this failed experiment that is 'copyright' and 'intellectual property' is a disaster? When at first it only regulated the printing of books, which required expensive equipment to produce, it KINDA made sense, mostly only to the big publishers but the regular people didn't care that much so the politicians made copyright a law. Now that it has logically been extended to all kinds of things, code, tv shows, movies, and now jokes, and the length of copyright
    • by PCM2 ( 4486 )

      When at first it only regulated the printing of books, which required expensive equipment to produce, it KINDA made sense

      I think you've got that a little backwards. Reproducing books was a lot more laborious (and therefore expensive) before the invention of the printing press. The invention of relatively easy mass reproduction is what gave rise to copyright.

      • so you are saying that from the very beginning copyright was all about protecting the rich from competition? *gasp* i am shocked!
        • by bws111 ( 1216812 )

          You are an idiot. Copyright exists to protect the author FROM the publishers. The publishers do not receive copyright protection. Your idiotic statement is basically 'now that it is easy to publish, there is no reason to protect the author from unauthorized publishing'. How does that make any sense? You might as well say 'back when the only way to kill someone was hand-to-hand, murder laws KINDA made sense, but now that anyone can shoot a gun there is no reason for those laws'.

  • A joke, as a verbal utterance, has to contain both an idea, and some form of expression of that idea. The idea is not copyrightable, but the expression certainly is *if it is sufficiently original*, which means it has to be long enough to be non-obvious.

    Take the joke, "I just flew in from Cleveland and boy are my arms tired," which was probably funny the first time it was ever used. The idea behind the joke is the confusion between two senses of the verb "to fly". This version joke is such a straightfor

  • ...what if they're NOT FUNNY?

  • by PPH ( 736903 ) on Wednesday May 17, 2017 @02:30PM (#54436227)

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

  • Because that episode [wikia.com] was damn funny.
  • Copyright protects any original idea. Which brings us to some limitations:

    1) You have to prove it is original. Good luck with that, most jokes are derivative. They have to be, because by nature they are short, and people have making jokes for thousands of years.

    2) You can't copyright the concept, i.e. the ingredients. Given the shortness of most jokes, that means that relatively minor changes can invalidate the copyright. Delivery alone might be sufficient.

    3) Parody is a clear exception, which can be

  • That's what the patent office is for.

  • gets charged for felony copyright violation.
  • Have you noticed that there is no concept of intellectual property in Star Trek and Star Wars? One can argue that IP law is preventing us as a species from making huge technological leaps. Certainly tort law is stifling innovation and preventing Darwin from thinning the herd. Perhaps Shakespeare was right but I won't quote him here lest the estate want a license fee.

Simplicity does not precede complexity, but follows it.

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