Whilst you are unlikely to run into any trouble telling a few of Seinfeld’s jokes to your mates at the pub, the situation may change if you decide to incorporate the jokes into a book, an advertising campaign or your own stand up comedy routine.
Is a joke protected by copyright?
Copyright protects original literary works that are recorded in some way. If a stand-up comedian doesn’t write his or her jokes down, but instead stores them mentally and remembers them upon each and every performance, the jokes will not be protected unless the performance was recorded in some way, such as by an audio or audio-visual recording.
Copyright may subsist in something as short as a joke or even a joke’s‘ punch line if it is sufficiently substantial to be considered a literary work. There is no mathematical formula to determine what will constitute a literary work, but copyright will rarely subsist in the arrangement of a few common words, as these will fail to satisfy the threshold test for a literary work. Although titles, slogans and headlines are generally not protected by copyright for this reason, many jokes are of a sufficient length and detail to warrant protection.
A joke will be considered original if it has not been merely copied from another work and it results from the skill and labour of its author. Whether it can be considered an original literary work can only really be assessed on a case-by-case basis. Some jokes, such as ‘knock-knock jokes’ or ‘why-did-the-chicken-cross-the-road jokes’, may be considered far too generic and common place to warrant any copyright protection. Given the degree of variety in the form and content that exists within the comedic genre, copyright protection can only be assessed upon the merits of each and every joke.
When will copyright be infringed?
Assuming that a joke warrants copyright protection, the owner of the copyright has a range of exclusive rights in relation to that work, including the right to communicate, adapt, reproduce and perform it in public. Copyright infringement occurs when someone other than the copyright owner exercises one of these rights in relation to a substantial part of the work, without the copyright owner’s permission.
It may sometimes be difficult to work out what is to be considered ‘substantial’ in the context of jokes. A person who uses a vital, essential or material part of somebody else’s joke, such as the punch line, may be seen to be infringing copyright. The part need not be large if it is important. If you are developing a live comedy routine and, without permission, you incorporate three minutes of material you obtained from a video of a Judith Lucy performance, you are likely to be infringing her copyright. If you are creating your own comic website, and, without any authorisation, you include several pages of jokes from a Billy Connolly book, it could constitute copyright infringement.
Copyright does not protect ideas, but rather the way ideas are expressed or put into effect. The format of a joke is therefore not protected, but the way it is described may be. However, it is often the idea that is central to the joke rather than the expression of it. A joke will still be funny if it is expressed using different words as long as the fundamental idea remains.
If a joke is merely used as the source of ideas and the information is reformulated and expressed in a new way in a different work, copyright may not be infringed. The central idea of a joke may have unlimited application to a comedian who wishes to dress it up in new clothes. If you change the text, the lead-in and the punch line of a joke, borrowing only the way in which the punch line relates to the lead-in, the two jokes may be sufficiently different such that you will not be infringing copyright in the original joke.
Even where there is no copyright in individual jokes, there may copyright in a collection of those jokes. So, before you borrow a chunk of material off a website or from a book, consider whether you may be infringing copyright in the compilation itself.
If you plan to publish or perform jokes that you did not create yourself, the first question you should consider is whether copyright subsists in these jokes. If so, you will need to obtain permission from the copyright owner to use the material, otherwise you risk infringing their copyright. If you don’t appropriately credit the authors of the jokes you may also be infringing their right of attribution, unless you can show it was reasonable in the circumstances not to do so. You may be able to avoid the need to obtain permission by putting comedic ideas into your own words and format and thereby making them your own.
Ellie Parker was a volunteer at Arts Law.