Are jokes intellectual property? Can you protect them from being used without your permission?
This is a topic of intense interest to joke writers and stand-up comedians — as well as authors of other types of entertainment fodder. The issue is making its way to the forefront because of a lawsuit regarding late-night monologues that is heading into court later this summer.
Copyrightable or non-copyrightable?
If you tell a joke you heard a colleague tell at the water cooler, that is clearly a non-copyrightable situation. But it’s very different when comedy professionals rely on the jokes they write to advance their careers.
There are stories of comedians who swear they were ripped off by other comedians. Joke theft infuriates performers, and yet top names have been accused of stealing: Amy Schumer, Conan O’Brien, Louis CK, Dane Cook, Robin Williams, Carlos Mencia — even Milton Berle, who used to be called the “Thief of Bad Gags.”
It is a difficult problem, as jokes float into the air and people convince themselves the joke is theirs. How does a writer nail down his or her rights to a joke? Milton Berle made no effort to deny his thievery. “I don’t steal jokes.” He explained. “I just find them before they’re lost.”
The pending lawsuit
The problem became historic this week as Alex Kaseberg, who has written thousands of jokes for Jay Leno, has filed a lawsuit against Conan O’Brien, Turner Broadcasting, Time Warner and writers and producers of his late-night show. The case is going to court, and the mysteries of where jokes come from will be laid bare.
Until now, joke ownership has not been litigated much. There is not much dollar value in a single one-liner. But Kaseberg says that his jokes have been stolen, many, many times, by stars and networks that are making a lot of money from them.
Was there infringement?
In order to prevail, Kaseberg will have to demonstrate that O’Brien et al willfully infringed on his intellectual property rights. The burden will be on him to show that the material belongs to him, and that he suffered harm by its unauthorized use.
Joke writers will be following this case with deep interest. So should everyone interested in protecting ownership of their own ideas.