THE LAWYERS WEEKLY
July 1, 2011 | 9
Copyright in jokes
Professional comedians levy sanctions against joke ‘thieves’
PETER BY TORONTO STAR / GETSTOCK.COM, FOXWORTHY B Y MARK HUMPHREY / CP, MIC B Y DREAMSTIME.COM
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) sub-
ject for intellectual property (IP)
law, examining the extent to which
protection is available for jokes pro-
vides an opportunity to reflect on a
variety of issues relevant to copy-
right 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.
Short jokes, particularly those
based on trite or generic observations or plays on words, may also be
insufficiently original or they may
fall too close to the dividing line of
the idea/expression dichotomy. Only
longer jokes which are written or
recorded are likely to obtain protection. That being said, compilations of
jokes, as compilations, certainly
qualify for copyright protection.
The Copyright Act (Canada) also
extends copyright protection to “per-
BOB
TARANTINO
LEFT: Comedian
Russell Peters
performs at Massey
Hall as part of the
Just For Laughs
festival in Toronto.
former’s performances,” which is
defined sufficiently broadly so as to
capture not just joke routines which
are recited from written notes, but
even improvised routines. A panoply
of exclusive rights in the performance gives rise to a cause of action
for unauthorized reproductions of
the performance.
signature “you might be a redneck
if…” jokes.
While the court was sympathetic
to the notion that the claim might
prevail on copyright grounds, the
decision focused more on the U.S.
equivalent of common law trade-mark rights, which Foxworthy had
obtained by virtue of the popularity
of his formatted routines. But such
protection would be difficult to obtain
and almost certainly would not
extend to other easily appropriated
elements of the comedian’s craft such
as identifiable modes of delivery (for
example, Steven Wright’s deadpan)
If a joke is re-told using slightly different
wording or structure, would that be
sufficient to qualify as infringement?
Trade-mark or passing off is a
form of intellectual property protec-
tion which may be useful to comed-
ians who have developed hallmark
routines or lines. Comedian Jeff Fox-
worthy obtained a preliminary
injunction against a T-shirt manu-
facturer (Foxworthy v. Custom Tees,
Inc. 879 F. Supp. 1200 (N.D. Ga.
1995)) who was reprinting slightly
modified versions of Foxworthy’s
or topics (for example, Russell Peter’s
musings on ethnicity and race).
RIGHT: Comedian
Jeff Foxworthy
hosts the CMT
Music Awards in
Nashville, Tenn.
