Author
Parul Mahajan
Class of 2025| USLLS IP University, New Delhi
In the year 2011, on the Comedy Central show, Lisa Lampanelli cracked a joke on Jersey Shore, saying, “I tried ordering your book on Amazon.com. Amazon said, ‘Customers who bought this book also bought a rope and a stool.”
Just a year ago, Whitney Cummings had something to say on similar lines to David Hasselhoff at his roast show, which sounded like, “I actually tried to buy one of your songs on Amazon.com. It said, ‘Users who bought this item also bought a shotgun.”
Comedians of the past and present of all comic styles, skill levels, and success levels, either have suffered from or run the risk of becoming victims of joke theft.[1] Despite joke theft being a common malpractice among comedians, it is but a trite matter for the legislature and hence legal protection against it has been rare.
While both joke writers and comedians lose money when their jokes are stolen, the latter also suffers the additional pain of not receiving the emotional satisfaction from performing as a result.
Copyrights and originality
The merger doctrine was an addition to US jurisprudence relating to copyrights through the infamous case of Continental Insurance v Beardsley. This case laid down the idea that if there were only a limited number of ways to accomplish a certain result, for example where specific forms are provided for legal use in similar documentary transactions, the language in that document could not be copyrighted. In the case of jokes, this certain result is the spreading of joy. Jokes constitute the category of literary works and thereby this suggests that they find protection in the US copyright law. In reality, however, copyright law does not provide significant protection to stand-up comedy. The merger doctrine simply states that when the expression of an idea is so intrinsically merged with the idea, to stay true to the cardinal principle of copyrights law, this expression also becomes uncopyrightable. This doctrine finds support in the U.S. as well as India. However, it is only through the definition of literary works that jokes may find protection even under the U.S jurisprudence. In India, there are four categories of protection that the Copyright Act, 1957 can purportedly provide to stand-up comedians, namely, as a literary work, dramatic work, cinematograph film and sound recording.
The case of Foxworthy v. Custom Tees is a significant development for the U.S. comedian community. This case dates back to 1995, when the U.S. District Court, Georgia provided relief to a comedian aggrieved because of replication of his jokes produced as printed texts on T – Shirts by the Defendant’s company entitled, coincidentally, “You might be a redneck if…”, The court credited Foxworthy’s testimony, “that more than 95% of his redneck joke ideas were original to him”. At paragraph 15 the court noted “In any event, the court finds that the plaintiff has presented strong evidence of secondary meaning, and therefore an entitlement to protection even if the phrase is merely descriptive.” Foxworthy, some would say, was a lucky comedian.
For the protection of dramatic, literary, artistic and musical works, ‘originality is one of the criteria established by the Indian Copyright Act, 1957. The requirement of originality gets satisfied if the act or the jokes originate from the comedians and their skills, judgement and labour are proven. In the case of Eastern Book Company v. D.B. Modak & Anr., the Supreme Court (“SC”) held that only the author can shape and sculpt an authentic piece of work and this piece comprises of ‘non mechanical’ and ‘non trivial application’ of prowess. The problem that still continues to persist is that many comedians, especially if they’re just starting out their career, use ideas from other comedians and express them differently. Even this can be considered innovation, especially supporting the idea of ‘art inspires art’ and its different expression. However, it still ends with monetary harm to the original writer of the joke, thereby invalidating the goal behind intellectual property protection.
Registration of jokes
If all jokes were to be registered by comedians before performance, it’s safe to assume that they’d go broke. For an application for registration or copyright in a literary, dramatic, musical or artistic work in India, it takes rupees 500 per work. For a compulsory license to perform in public, the cost goes up to 5000 rupees per work. Most comedians, especially the ones who just start out, have little to no money. It isn’t unreasonable to think then, that in order to copyright jokes, comedians will have to put a lot of money into it and that is a feat achievable only by people well established in the field, if not all. The copyrightability of jokes is also a complex concept for two further reasons, firstly, lawsuits are expensive and time consuming. A comedian’s career may be over by the time a lawsuit is. Secondly, the ‘merger’ and ‘scenes-a faire’ doctrine further limit the protection that can be afforded to jokes through copyrights.
The social norms system
In stand- up comedy, ‘social norms’ substitute for intellectual property law. These social norms refer to practices not backed by law but very well-established principles inside the comedian community. They range from something as simple as badmouthing and may lead up to not just refusals to work together but also physical violence. A comic would respond as he would toward a robber who had literally taken food from his lips if he saw his routine performed by someone else on stage. Fortunately, comedians adhere to “basic civility”, which means they never tell a joke that belongs to someone else. The comedians who succeed in developing a reputation in the community as joke thieves are rejected in a variety of ways. Aggrieved comedians refuse to appear on the same stage with the known joke thief.
When people outside of the comedy community publish a comedian’s joke on social media, the social norms system no longer works. Whoever is not a part of the industry can largely benefit from the original works of other comedians without having to deal with the well-established norms that the comedians use to regulate themselves. This problem of extra community misappropriation persists and hampers the success of the already fragile norms that comedians follow.
Hani Gazal suggests that it is important to look at jokes as two separate pieces: the setup and the punchline.[2] Because the punchline is the key piece of the joke, providing this limited expansion of protection would help all comedians without providing overly broad copyrights, he argues. A successful test for determining whether a joke infringes on another joke would be as follows: “the joke is said to be an infringement only when the punchline along with the set up are similar. In other words, the structure of the punchline, not the entire joke, is what determines protection under a similar set-up.”
The scope for limiting the ‘fair use doctrine’
Section 52 of the Indian Copyright Act, 1957 provides exceptions to copyright infringement which is thereby termed as the fair use doctrine. In the case of Civic Chandran v. Ammini Amma, for the purposes of determining whether or not a work is infringing on someone else’s copyright, the Court established three criteria :
Firstly, the gravity of the matter with regard to the comments or criticism
Secondly, its purpose and
Finally, the chances of the two works competing against each other
It is interesting to see that once a comedian’s joke is copied, there remains no more competition between the copied version and the original one. When a comedy piece already performed on stage is copied by some other person on stage too, it is no longer competing for the audience’s attention as the audience will not pay for the same joke twice. It then starts to touch the borderline of infringement. As the court noted in Universal Pictures Co. v. Harold Lloyd Corp., “It is common knowledge that the repeated use of comedy detracts from its force as amusement.”
The fair use doctrine shouldn’t be expanded but rather limited within the context of comedy. Since it has already been amended thrice, considering the growth of stand-up comedy, the courts need to bring comedy under the purview of intellectual property uniquely.
Conclusion
Every industry and every form of art comes with its own set of controversy, issues and mayhem. For comedians, joke stealing is the biggest one. There are a few case laws indicating that copyright protection can be granted to jokes through any path. With the advent of technology and the ease with which jokes are so readily available to everyone, the need for protection will only increase exponentially. The difference between a setup and a punchline can be elaborated upon in a very successful way provided that the courts are willing to understand the complexity of the issue. In the U.S., Foxworthy is the luckiest case law for comedians but the nuances in that decision is that the defendant never raised the defence of scenes a faire doctrine. The problem is that comedians cannot continue to rely on luck for protection. Hence, the fair use doctrine needs to stray away from the context of comedy when applied to comedy of the same manner itself. That will enable stand- up comedians to make a living of simply doing what they do, make jokes and hope they don’t get stolen.
[1]Dotan Oliar and Christopher Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Virginia L. Review 8, (December, 2008)
[2]Hani Gazal, I Used to (Steal Jokes). I Still Do, but I Used to, Too: A New Test for Providing Copyright Protection to Stand-up Comedians, 45 AIPLA Q. J. 759 (2017).
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