Can You Copyright Your Dumb Joke? And How Can You Prove It's Yours?
"In 2008, law professors Dotan Oliar and Christopher Sprigman published a paper that explored the norms comics had established to protect their intellectual property: their jokes...
Can you really copyright a dumb joke?
"The question really focuses on originality, and there is no freestanding barrier to copyright extending to a joke on any topic ... so long as that joke meets the fairly minimal requirements for originality," says Perzanowski. "That means it has to demonstrate some low level of creativity and importantly that it not be copied from some other source."
"Copyright will give you protection for this specific arrangement of words," he says, but not for a whole subject matter.
When it comes to topical comedy, he says, the question is whether one can separate an idea (which can't be copyrighted) from its expression (which can).
Judge Sammartino agrees. "[T]here is little doubt that the jokes at issue merit copyright protection," she writes, citing the relevant case law, "noting originality requires only independent creation of a work that 'possess[es] some creative spark, "no matter how crude, humble or obvious" it might be.'"
However, she adds, the jokes here "are similarly constrained by their subject matter and the conventions of the two-line, setup-and-delivery paradigm."
The result is that for O'Brien's jokes to infringe on Kaseberg's copyright, they must be "virtually identical," one step below verbatim."
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