Jokes and Copyright
Jay Leno, NBC, and others (Rita Rudner, Jimmy Brogan, Diane Nichols,
Sue Pascoe, Kathleen Madigan and Bob Ettinger) against comedy author
Judy Brown and her publishers for the unauthorized publishing
thousands of their jokes in 19 books over 10 years, entitled "The
Funny Pages, Squeaky Clean Comedy, Funny You Should Know That, Getting
Old Is a Joke and Joke Stew. (I wonder about the statute of
limitations defense for the stuff older than three years). Leno is
quoted as saying "I thought it was important to make it clear that
jokes are protected like any other art form.... On behalf of the
tremendous and talented group of writers we have at The Tonight Show
and many other hardworking comedians, I'm very glad we've been able to
stop this practice once and for all."
Brown, issued an apology : "In my books, I have published jokes of Jay
Leno and the other comedians in this lawsuit without their
permission.... I sincerely apologize for doing so. I greatly admire
the creativity, wit and energy of stand-up comedians, and I recognize
that comedy is as much an art form as other types of creative
expression...This is why I am settling this lawsuit by agreeing never
again to publish their jokes without asking their permission to do
so."
While Ms. Brown was made to repent, some of our top comedians are
alleged to have very sticky fingers with their colleagues' materials.
Many articles have been written about Robin Williams. Here is one from
a Feb. 14, 2007 article in Radar, which begins:
Anyone who has ever performed stand-up is familiar with the red light,
the universal signal that warns dawdlers it's time to wrap things up.
In the '80s, comics at the Hollywood Improv came up with a novel use
for the light. When shining steadily, it had the conventional meaning.
But if the bulb began sputtering, it was the comedic equivalent of an
air-raid siren, warning performers to lock up their original material
immediately unless they wanted to lose it to a master thief.
Robin Williams, comedy's most notorious joke rustler, was in the
house.
Though the rap has followed Williams for years, he's not alone. In the
world of stand-up, joke-jackers are as common as exposed brick walls
and liquored-up hecklers--an occupational hazard that eventually robs
every working comic of time-tested material. It's the dirty little
secret of the comedy world, a crime committed at every level--from
amateurs at open mikes to big-name pros on late-night TV. Though
rarely discussed outside the clubby, if sharp-elbowed, comic
community, the subject is the surest way to wipe the grin off a
funnyman's face. Daily Show correspondent Demetri Martin learned the
lesson during his first year on the circuit, when he watched in horror
as a comic brazenly recycled a joke he had told the previous evening.
"I thought, Jeez, this is how it works?" he recalls.
George Lopez accused Mencia of ripping off his act for an HBO special.
"One night, I picked him up and slammed him against the wall," Lopez
told Howard Stern. Unfortunately, it is. While most comics take pride
in performing their own material, many have built lucrative careers on
borrowed bits.
There are numerous others mentioned in the article to including this
rather unusual one out of many about Dane Cook:
Joe Rogan, host of Fear Factor and formerly of The Man Show, says he
experienced this firsthand with a routine he spent months developing
on the topic of tiger fucking. When Rogan saw a friend he'd performed
with many times recycle his bit on Comedy Central after simply
changing the tiger to a rhino, his claws came out.
The friend? Future megastar Dane Cook.
Here is a passage about Dennis Leary
Accusations of comedic skullduggery have also dogged Denis Leary, who
has spent much of his career denying that he borrowed his act
wholesale from Bill Hicks, the edgy, anti-establishment legend who
died of cancer in 1994. Critics have long cited a laundry list of
alleged similarities between Leary's 1993 album No Cure for Cancer and
Hicks's earlier work, from Leary's angry, chain-smoking persona to
specific jokes about tobacco, health nuts, and lame bands. The charges
grew so widespread that they inspired a scathing joke among some of
Hicks's friends that Leary had become famous only because, well,
there's no cure for cancer.
Colleen McGarr, a onetime talent coordinator for the Montreal Comedy
Festival and a close friend of Hicks's was backstage at the fest in
1991 when she first saw Leary perform what seemed to her an
uncomfortably familiar set. "I was aghast," says McGarr, who later
became Hicks's manager and fianc�e. "To me, it was Bill's material
done in a shabby, humorless way, but shocking enough that people would
respond to it."
"I was shocked that [Leary] could still work in Boston," says Rogan,
who claims he has also watched Leary recycle old bits by Ray Romano.
Compendium II of Copyright Office Practices � 420.02 states: "Jokes
and other comedy routines may be registered if they contain at least a
certain minimum amount of original expression in tangible form. Short
quips and slang expressions consisting of no more than short
expressions are not registrable." In other words, jokes are to be
considered under the ordinary originality standard applied to all
other material.
What have the courts held? In Jeff Foxworthy v. Custom Tees, Inc., 879
F. Supp. 1200, 1217-1219 (N.D. Ga. 1995), the court gave very
expansive to Jeff Foxworthy's "You might be a redneck if ..." one-line
jokes, jokes which seem to fit within the final, non-protectible part
of the Compendium, taken individually. The court however, saw things
differently:
Defendants argue that the jokes are not original to plaintiff because
he receives ideas, often in the form of jokes, from others. To support
this assertion, defendants point to the Foreword to plaintiff's book,
Red Ain't Dead, where plaintiff wrote
[N]ot a day goes by that someone doesn't offer me a new example of
`redneckism' ... With the help of my wife and friends, I add several
to the list almost daily. I have collected numerous Redneck Lines from
radio audiences and even from my live show audiences.
... Defendants therefore argue that "plaintiff's work consists of
preexisting `public domain'-[sic] material that was `authored' by many
persons over the years." ...
Plaintiff testified at the hearing in this matter that he does in fact
receive ideas from other sources, but more than 95% of his redneck
joke ideas are original to him. ... More important, plaintiff
testified that, even when he receives an idea from another person, it
is plaintiff who takes the idea and gives it the expression in the
form it appears in his books. In other words, plaintiff testified
unequivocally that he wrote every word in his books, calendars, etc.
Finally, plaintiff testified that he wrote and had the ideas for each
joke appearing on defendants' t-shirts produced at the hearing.
....
In the same way, two entertainers can tell the same joke, but neither
entertainer can use the other's combination of words. This is where
defendants' argument misses the mark. Copyright is concerned with the
originality of the expression, not the subject matter. Plaintiff
repeatedly stated that he uses other people's ideas, but he puts them
in his own words. At the hearing, he explained why:
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.
Q. How important is the particular expression of the joke versus the
underlying idea of the joke?
....
A. Well, I mean the idea is key in coming up with the wording. You
need-the idea comes first and then you play with it to get the wording
correct.
Unofficial Trans., at 18-19. Plaintiff clearly established at the
hearing that all of the jokes copied by the defendants were not only
his own ideas, but his own expression. His expression clearly
evidenced a "modicum of intellectual labor," Feist, 499 U.S. at 346,
111 S.Ct. at 1288 (quotation marks and citation omitted), and
defendants clearly copied that expression verbatim. Accordingly,
plaintiff has shown a likelihood of success on the merits of his
copyright claim.
Another case involved the classic humor-grabber, the fart joke, JCW
Investments, Inc. v. Novelty, Inc., 289 F.Supp.2d 1023 (N.D. Ill.
2003), in which the trial court was offended by defendant's
association of such jokes with a specific class of people:
Defendant directs the court's attention to excerpts from Jim Dawson's
Who Cut the Cheese? A Cultural History of the Fart, Ten Speed Press
(1999), as evidence that " `fart jokes' have long been popular `among
the lower classes' and `poor people.' " Assuming arguendo that this
proposition is true, however, does not dictate that it is "standard"
to depict a farting character as having low socioeconomic status.
On appeal to the Seventh Circuit, 483 F.3d 910 (7th Cir. 2007). the
great Judge Diane Wood expressed that court's surprise: "Somewhat to
our surprise, it turns out that there is a niche market for farting
dolls, and it is quite lucrative."
Whether Mr. Leno is blowing hot air with suit, it does seem that the
practices of some other comedians is less respectful of those (still
