Last summer, comedian Robert Kaseberg filed a copyright infringement suit against Conan O’Brien, among others, alleging that O’Brien incorporated four jokes written by Kaseberg in the opening monologues of his television show “Conan.” According to the complaint,  Kaseberg published each of the jokes – all of which were based on then-current events and news stories – on his personal blog and Twitter feed on various dates between January and June, 2015, only to have O’Brien feature the same jokes in his monologues on the same respective dates.

Copyright lawsuits involving the infringement of jokes are surprisingly rare. As a result, lawsuits such as Kaseberg’s raise interesting – and largely unsettled – issues about the application of copyright law to comedy routines and jokes.  For instance, one issue likely to arise in lawsuits involving “one-liners” about current events is whether the allegedly infringing joke is simply the result of “great minds thinking alike.”  Indeed, even where two works are identical, the fact that the allegedly infringing work was independently created provides a defense to a claim of copyright infringement. See United States v. Liu, 731 F.3d 982, 991 (9th Cir. 2013) (“if a defendant did not copy as a factual matter, but instead independently created the work at issue, then infringement liability must be denied”).  Thus, where a current event or news story lends itself to an obvious joke, a claim of copyright infringement may be subject to the defense of independent creation.

Additionally, fair use considerations may arise in copyright litigation involving jokes. The fair use doctrine, codified in 17 U.S.C. § 107, allows for the use of copyrighted works “for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research.”  The determination of whether a use constitutes a “fair use” turns on a four factor balancing test, which looks at: (1) the purpose and character of the use (including whether it is commercial nature); (2) the nature of the copyrighted work (including whether it has been “published”); (3) the amount and substantiality of the portion used use (including whether the infringer used the “heart” of the copyrighted work); and (4) the effect of the use on the market for, or value of, the original. See 17 U.S.C. § 107.  In the context of a claim for infringement of a copyrighted joke, factors relevant to a fair use analysis could possibly include: (1) whether the alleged infringement occurred at a comedy club, or during a news report commenting on a comedian’s controversial joke; (2) whether the joke was new material that had not been publicly performed; (3) whether the infringer copied the set-up of the joke, or its punchline; and (4) whether the infringement occurred during a single live performance, or was posted on social media or included on a comedy album, thereby negatively impacting the market for the joke.

The Kaseberg lawsuit also raises issues about whether certain jokes qualify for copyright protection, in the first instance. In order to be subject to copyright protection, a work of authorship must be “original.” See 17 U.S.C.S. § 102.  Thus, to the extent that a joke is based on a preexisting or “stock” joke, it may not be protected under copyright. See, e.g., Marvin Worth Productions v. Superior Films Corp., 319 F.Supp. 1269, 1272 (S.D.N.Y. 1970) (concluding that certain jokes at issue in copyright infringement action “involve[d] stock situations” and, therefore, lacked “the quality of originality to render them copyrightable”); Hoffman v. Le Traunik, 209 F. 375, 379 (N.D.N.Y 1913) (denying request for preliminary injunction where the plaintiff did not meet his burden of establishing that the expressions in his monologue were “original with him”); Reader’s Digest Association, Inc. v. Conservative Digest, Inc., 642 F.Supp.144, 146 (D.D.C. 1986) (rejecting copyright infringement claim based on digest’s copying of jokes were evidence revealed that plaintiff was not the source of the jokes, but, rather, took the jokes from other periodicals).

Even where a joke is deemed to be “original,” the nature of the joke may impact whether it qualifies for copyright protection. For instance, one of the fundamental tenets of copyright law is that “ideas” embodied in a work of authorship are not protected. See 28 U.S.C.S. § 102(b).  Rather, copyright protection is limited to the author’s “expression” embodied in the work.  Thus, if a comedian were to take the underlying idea of another comedian’s joke and create his or her own original expression of the idea, there would likely be no infringement. See, e.g., Reyher v. Children’s Television Workshop, 533 F.2d 87, 92-93 (2nd Cir. 1976) (holding that, although the two stories at issue were essentially the same, the similarity extended only to the idea of the story and not the particular expression and, therefore, no infringement occurred).  Moreover, under the merger doctrine, even a comedian’s particular expression of a humorous idea may not be subject to copyright protection. The merger doctrine provides that, “where there are so few ways of expressing an idea, not even the expression is protected by copyright.” BUC Int’l Corp. v. International Yacht Council Ltd., 489 F.3d 1129, 1143 (11th Cir. 2007).  Accordingly, where a humorous idea can only be expressed in a limited number of ways, the “idea” and “expression” of the joke could be deemed to merge, such that not even the comedian’s expression would be protected by copyright.

One of the more recent cases to address the copyrightability of jokes is Foxworthy v. Customer Tees, Inc., 879 F.Supp. 1200 (N.D. Ga. 1995).  In that case, comedian Jeff Foxworthy – famous for his “you might be a redneck if…” jokes – brought an action for copyright infringement, among other claims, against a company that sold tee-shirts bearing exact copies of Foxworthy’s redneck jokes.  In opposition to a motion for a preliminary injunction, the defendants argued that Foxworthy’s jokes were not “original” because Foxworthy’s testimony established that he sometimes received ideas for his redneck jokes from others.  The court disagreed, noting that the issue was not whether the ideas for Foxworthy’s redneck jokes were original, but, rather, whether Foxworthy’s expression of those ideas was original.  To that end, the court noted that “two entertainers can tell the same joke, but neither entertainer can use the other’s combination of words” – i.e., the other’s expression. Id. at 1219.  The court concluded that the defendants had copied the protected expression of Foxworthy’s jokes and, therefore, Foxworthy had shown a likelihood of success on the merits of his copyright claim.

While Foxworthy provides some solace to comedians seeking to protect their jokes under copyright, the decision focused only on whether Foxworthy’s jokes were “original” and did not delve into the intricacies of the idea/expression dichotomy or the related merger doctrine.  The claims at issue in the Kaseberg lawsuit may provide the district court with just such an opportunity.