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Does Copyright Protect Jokes?

People, our nation is facing a crime wave. And the crime…is joke theft.

That’s right. There are dubious elements in society who want to pass off others’ jokes as their own.

Is the law prepared to deal with this existential challenge to the fabric of our society? Or, to put it another way: Does Copyright Protect Jokes?

Two recent stories brought this issue to my attention:

From The Verge: Twitter is deleting stolen jokes on copyright grounds

From The Hollywood Reporter: Conan O’Brien Targeted in Lawsuit Claiming He Lifted Jokes from Twitter

The Verge’s story relates to Olga Lexell, a freelance comedy writer who claims that others had taken her jokes and tweeted them as their own. Lexell filed DMCA (Digital Millennium Copyright Act) notices with Twitter and the offending tweets were removed.

DMCA Refresher

Here’s a DMCA refresher from my March 2015 blog post Can You Use Copyright to Combat Controversial Online Speech?

Go to the “Terms and Conditions” of any website that hosts user-generated content and you’ll see some info about their DMCA takedown notice procedure. The idea is that if you own the copyright for some piece of content – written copy, images, videos, whatever – and you find that someone’s using it online without your permission, you can send in this kind of notice to the hosting service, and, most likely, the service will take it down.

This provides hosting services with what’s called “safe harbor.” The service can’t be sued directly for copyright infringement if they comply with the DMCA takedown procedure. Theoretically, if this safe harbor protection wasn’t in place, there would be no blogging, social media, or web hosting companies; they would all have been sued out of existence for inadvertent copyright infringement.

OK, but what about jokes?

Copyright law protects jokes just like any other form of content. There’s no minimum size or length for a written work to qualify for copyright protection. However, there must be at least some original expression for the work to be protected—a one or two word phrase almost certainly wouldn’t qualify.

The bottom line is that even a brief joke can be protected.

The Conan case centers on another freelance comedy writer, Robert Kaseberg (a fellow San Diego resident.) Kaseberg claims to have posted four jokes on Twitter, each of which appeared, in somewhat altered form, on the Conan show shortly thereafter. You can read Kaseberg’s full legal complaint here, including the original jokes themselves. Presumably Kaseberg gave his lawyer permission to reprint them for the purpose of the lawsuit.

In the entertainment world, joke theft has been a controversial issue for decades. There’s even a Wikipedia page devoted to the topic. Full-fledged lawsuits are less common.

In order for Kaseberg to prevail, he will have to demonstrate that Conan or his staff had access to Kaseberg’s jokes (meaning not just that Conan had access to Twitter, but that he had a reasonable opportunity to encounter Kaseberg’s jokes) and that the jokes were so similar as to indicate copying. Conan can defend himself by introducing evidence that he or his staff independently created the jokes. One would assume that TBS and the Conaco, which produces Conan, would have a strict policy against using others’ material. If the jokes weren’t stolen, they will presumably have some evidence of their origin.

Remember: copyright doesn’t protect ideas. So if you have the same comedic idea as someone else, and you both independently express the joke, neither party has a copyright claim against the other. If Conan and the other defendants want to fight this case, it’ll take something along the lines of a smoking gun for Kaseberg to prevail.

OK, but what if I just have a Twitter account, not my own nightly television show?

Those of us lacking a basic cable outlet for our wit and wisdom often have to settle for sharing our jokes on social media. And that’s fine.

It’s also, in most cases, OK to retweet or otherwise share something someone else posted, as long as the original poster is attributed.

It’s not OK, however, to pass off someone else’s joke as your own. Are you likely to get sued? Probably not. But you could have your tweets taken down, and you might just have your Twitter account suspended or removed altogether.

Conclusion: make up your own jokes or settle for retweets.

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