Can you copyright a joke in the United States?

Can you copyright a joke in the United States?

Jokes are an important part of the entertainment industry.  Comedians make their living by coming up with jokes to entertain us.  How can they protect the product of their hard work? Does copyright law provide comedians with the right to prevent other people from repeating their jokes?  The answer is – it depends on the facts.

To be eligible for copyright protection the thing to be protected, in this case jokes, must be fixed in a tangible medium.  17 U.S.C. 101 of the United State Copyright Law states that “a work is fixed in a tangible medium of expression when its embodiment in a copy … is sufficiently permanent … to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”  To be eligible for protection the joke must be recorded in some way, either written down, saved to a computer, recorded on video, or some other method to save the joke.  A joke spoken in a conversation and not recorded in some way is not eligible for copyright protection in the United States.

Publication of the joke is not necessary.  The comedian does not have to tell anyone the joke to gain copyright to the joke, merely recording the joke is enough.

Registration of the joke with the United States Copyright Office is not necessary for the comedian to gain the copyright to the joke.  But the joke must be registered with the United States Copyright Office if the comedian wants to file a copyright infringement lawsuit.  Recording the joke creates the copyright to the joke but registering the copyright is necessary to enforce the copyright.

Lets say that a comedian has written a joke and registered that joke with the United States Copyright Office.  The comedian is relaxing , watching television and hears a popular television star use the joke on a television show.  Does the comedian now have a copyright infringement lawsuit against the television show?  The answer is – maybe.

To begin a copyright infringement lawsuit against the television show the comedian would have to prove that the television show was infringing on the exclusive rights granted by copyright law, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works.  The television show is broadcasting a recording to its audience, so the comedian’s right to reproduce, distribute and perform the joke are potentially being infringed upon.

Before filing a lawsuit it is best to try to come to an agreement with your adversary.  It would be prudent for the comedian to get an attorney to contact the television show to see if an agreement can be reached.   Perhaps the comedian and the television show can form a licensing agreement for the joke.

If the comedian and the television show cannot come to an agreement, and the comedian decides to sue the television show for copyright infringement, the comedian will have to prove that the television show infringed on the comedians copyright to the joke.  This is not as easy as it sounds.  It is not enough that the actor on the television show performed a joke that is very similar to the comedians copyrighted joke.  Copyright law protects the expression of ideas, not the ideas of themselves.  Just because the comedian came up with a joke does not give the comedian the right to prevent others from telling similar jokes.  Only the comedian’s expression of the joke is protected by Copyright Law.  To win a copyright infringement lawsuit, the comedian will have to convince the court that someone from the television show copied the comedian’s joke.  The comedian will have a very difficult time convincing the court that the television show infringed on the copyright of the joke if there is no evidence that the television show had ever seen the comedian’s joke.  The television show will defend themselves by claiming that they independently created their own expression of the joke.  Independent creation is a defense to copyright infringement because copyright protects the expression of an idea, not the idea itself.

To summarize – Can a joke be protected by copyright?  Yes.  Is it possible to sue someone for copyright infringement of a joke?  Yes.  Is it easy to win a lawsuit for the infringement of a copyright on a joke? No, the comedian will have a difficult time convincing a court that the comedians copyright on the joke has been infringed and that the television show did not independently create their own expression of the joke.

If you have a question about copyright infringement it is best to consult with an attorney that specializes in copyright law.