Joke Poaching and Intellectual Property Law

De temps en temps nous partageons des travaux « IP News » exceptionnels, écrits pour la classe de Propriété intellectuelle (BUS 502). Vous trouverez celui de Fiona Cooke ci-dessous.  


Joke Poaching and Intellectual Property Law

Joke theft, or “joke poaching”, is a cardinal sin in the world of comedy, as illustrated by the recent case Kaseberg v Conaco LLC. The plaintiff scored a victory in May of 2017 when the United States District Court of California denied the defendants’ motion for summary judgement, allowing the case to proceed to trial. It is a rare occasion that a comedian will turn to copyright law to revendicate his rights to his jokes, even if they may be the only source of his income. Dotan Oliar and Christopher Sprigman show that instead, the comedy industry in the United States sustains a complex web of social norms that stigmatize and punish joke-stealing in lieu of recourse to the courts. Comedians self-police the matter by “surveilling” others’ sets, and reacting to thefts by direct confrontation, negotiation, and in cases of repeated thefts, reputation tarnishing and blacklisting.[1] Why was intellectual property (IP) law used in this case instead of this informal network of norms? How well do 140-character tweeted jokes fit into the framework of IP law?

Alex Kaseberg is a freelance working comedian and comedy writer who often posts  observational humour about current events on his twitter account and his personal blog.[2] His opponent is Conaco LLC – Conan O’Brien and a team of eight of his employees who write jokes for O’Brien’s nightly stand-up routine on his late night show. Kaseberg asserts that between 2014 and 2015, the writers of Conan stole five jokes from his twitter feed for use on O’Brien’s nightly monologues.[3]

Jokes are “artistic works” or “performances”, which are undisputably protected by copyright law in the United States as well as Canada. However, this case turns in part on the particularly difficult distinction made between an “idea” and its “expression” when it comes to a joke, especially a short one. The Court found that Kaseberg’s jokes are entitled to only ‘thin’ protection, as there is so little protectable material present:[4] all of his jokes begin with the statement of a fact, which cannot be protected by copyright. This leaves as protectable expression only the punchlines, which contain ideas that can only be expressed in so many ways.[5] The trial judge will decide whether O’Brien’s expression of four of his punchlines are similar enough to Kasebergs’ to infringe on his copyright.

Ultimately, Kaseberg’s case will face many obstacles; notably, the possible defence that O’Brien’s writers came up with ‘independent creations’ seems strong, especially given the simplicity, obviousness and topical nature of the jokes. This defence, also recognized under Canadian law, functions even if the expressions are identical. The determination of this issue will be closely related to the question whether Conaco had access to Kaseberg’s jokes.[6] As well, the standard for similarity in cases of ‘thin’ copyright protection  is “virtual identity”[7] (“substantial taking” in Canada[8]) which may be difficult to meet – it can be described as “a step below verbatim”.[9]

The District Court’s approach of dissecting the work into ‘protectable’ and ‘unprotectable’ material, and then comparing only the ‘protectable’ elements, has in fact been rejected for most types of works by the Supreme Court of Canada. In Cinar Corporations v Robinson, the SCC held that the piecemeal comparison of dissected elements of a work is inappropriate; instead, courts should consider the similarities more broadly by comparing the two works in their entirety.[10] Although no comedians seem to have sued for copyright infringement of their jokes in Canada, it is possible that a holistic comparison of such short works may be easier on the plaintiff – no sections of the already-short works will be extracted from the comparison process because they are facts, and it may therefore be easier to see broader similarities in setup, style, theme, etc.

Perhaps cases like this have been rare in both the United States and Canada because it is difficult to see how the simple  protection of a particular expression of a joke is useful to working comedians, considering that so often, an original, funny idea can be expressed in various ways without losing the essence of what makes it a joke in the first place – the idea. The “particular expression” of a joke may change night to night while still remaining the same joke. IP law, famously, does not protect ideas. However, the informal system of norms that exists to regulate joke thefts, according to Oliar and Sprigman, does indeed protect funny ideas: if a comedian poaches a joke idea, regardless of its expression, this is subject to sometimes intense social sanction.[11]

Oliar and Sprigman’s article, however, may provide an explanation for why this particular case was pursued in the first place. They note that “one would still expect some lawsuits to be brought, such as in cases where copying were literal or closely so, the defendant were rich, and strong evidence negated the possibility of independent creation.”[12] It is unlikely that Kaseberg, an almost unknown comedian, has at his disposal a wide variety of mechanisms to socially sanction Conan O’Brien, one of the most successful comedians of his generation. And it would be particularly easy for an unscrupulous comedy writer for a large, powerful network to scan the thousands upon thousands of jokes that are tweeted every day by aspiring comedians with no social clout. Despite a somewhat weak case, this lawsuit may serve more of an expressive purpose – to make it clear that even top comedians should be wary of poaching from the little guys.


[1] Dotan Oliar and Christopher Sprigman, “There’s No Free Laugh (Anymore): the Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy” (2008) 8:94 Virginia Law Review 1787 [Oliar].

[2] Eriq Gardner, “Conan O’Brien Headed to Trial after Claims of Stealing Jokes” (15 May 2017), Hollywood Reporter, online: http://www.hollywoodreporter.com/thr-esq/conan-obrien-headed-trial-claims-stealing-jokes-1003727.

[3] Kaseberg v Conaco, U.S. Dist. LEXIS 72921; Copy. L. Rep. (CCH) P31,097 at page 3 (2017) [Kaseberg]. Online: https://assets.documentcloud.org/documents/3720894/Conan-Order-512.pdf.

[4] Ibid at 18.

[5] Ibid at 21.

[6] Ibid at 25: “Where evidence of access and substantial similarity are lacking, an independent creation defense usually becomes more plausible.”

[7] Ibid at 20.

[8] Cinar Corporation v Robinson, 2013 SCC 73 [2013] 3 SCR 1168 [Cinar].

[9] Laurel Wamsley, “Can you Copyright your Dumb Joke? And How Can You Prove It’s Yours?” (17 May 2017) NPR, online: http://www.npr.org/sections/thetwo-way/2017/05/17/528680860/can-you-copyright-your-dumb-joke-and-how-can-you-prove-its-yours.

[10] Cinar, supra note 8 at paras 34-36.

[11] Oliar, supra note 1 at 1790.

[12] Ibid at 1809.

This content has been updated on November 1, 2017 at 14:44.

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