jokes and copyright

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