Some people just can’t take a joke. Other people have taken jokes, and it has landed them in court. Two recent American copyright cases offer an opportunity to look at the difficulties of protecting comedy routines with copyright.
TCA v McCollum  examines the copyright protection for Abbott and Costello's beloved Who's On First routine. There is no clear picture of who first wrote Who’s On First, but most agree that Abbott and Costello evolved it through public performances and radio appearances. The decision hinged on the tangled ownership history of the routine.
The plaintiffs, who claim to own the copyright in Who’s On First, filed against the producers of Hand to God, a play in which a possessed hand puppet and puppeteer trade lines from the routine. In the initial proceeding, the trial court found that repurposing the routine in a darkly comedic play was transformative fair use. The Second Circuit spent about two dozen pages of the judgment rejecting that finding, and only then determined that there was no copyright interest to be infringed.
Under the US Copyright Act of 1909, works were initially protected for 28 years from publication, renewable for a second term. Since One Night in the Tropics was the first publication of the routine, its protection ran alongside that of the film. However, Abbott and Costello—not the film producers—were considered the authors of the basic routine because it pre-dated their contracts with the producers. Because they licensed rather than assigned their copyright, they were personally responsible for renewing it in 1968. They did not, so the basic routine was in the public domain when written into Hand of God.
The jokes in Kaseberg v CONACO  have a much shorter history. They are also much shorter—one-liners that Alex Kaseberg published on his blog or on Twitter. He filed a complaint in US District Court alleging Conan O’Brien and his staff stole five jokes for his late night talk show. Team Coco’s answer is brief but claims that Kaseberg’s jokes are not protectable subject matter, that they did not copy him, that the jokes were not original, and that any copying was fair use. Arguments are likely to focus on whether Kaseberg’s jokes are protected by copyright.
Under the merger doctrine, if there are only a small number of ways to express an idea, the idea and the expression merge, and the expression cannot be protected. If the idea behind Joke #1 is “even on an otherwise empty airliner, the only two passengers will compete for resources” there might be a number of punchlines: fighting over the arm rest, putting the seat back, waiting in line for the bathroom. However, if the idea is “even on an otherwise empty airplane, the only two passengers will fight over the armrest”, options are much more limited.
As well, since the jokes fit a common comedy rhythm and employ common comedy tropes related to current events, they may be scènes à faire, not original enough for protection.
Although since superseded, the US Copyright Office’s second Compendium, clarified that “short quips and slang expressions consisting of not more than short phrases are not registrable.” The jokes in question are each two sentences long and follow a familiar comedy rhythm: one set-up line, one punch-line. They may not include enough expression to warrant protection.
Joke theft is a common complaint in the comedy world. Copyright protection might seem like an obvious solution but lawsuits have been relatively rare. Together, these two cases illustrate why comedy writing does not generally mesh well with copyright: comedy routines evolve over time and are developed amidst standard tropes and structures.
A 2008 research study traced the history of stand-up, from vaudeville when jokes were widely copied to modern stand-up when jokes are viewed as personal property. The paper details a self-policing, norms-based system of joke protection among comedians, and suggests that lawsuits are not necessary since informal sanctions are cheaper and more effective.
The Conan lawsuit likely results from one of the particular problems the paper identifies with norms-based enforcement. Where the alleged joke thief is substantially more famous than the writer, informal mechanisms for enforcement break down. Even if the legal arguments are on shaky ground, a lawsuit--especially one that brings bad publicity to the defendant--may help balance the scales.
Jacquilynne Schlesier is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School. Jacquilynne is currently enrolled in Osgoode's Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.
 TCA Television v. Kevin McCollum, No 16-134-cv (11 October 2016, 2d Cir).
 Kaseberg v. CONACO, No 15-CV-016370-JLS-DHB (Filed: 22 July 2015, SD Cal).