Jokes as Intellectual Property: Not Just Kidding!

Internet has empowered us to showcase our humour skills like never before. In last four years, India has seen a massive proliferation of online humour industry like never before. Many of the performances may fall under satire or parody. However, not all performances can be brought under these categories. Some of the performances are purely jokes. While these performances primarily are making this world a funnier place, as these industries turn into more professionalized worlds, it becomes important to look into the IP regime governing the jokes. An argument for protection of jokes may seem bizarre. However, the legal claims on joke stealing are also on rise (See here here and here). The post aims at looking into the issues that arise in order to strike the right balance for providing IP protection to a joke.

Why is IP regulation required for jokes?

Certain expressions are already copyrighted. The copyright may be claimed over the specific performance (videos) or the collection such as in case of books. However, this post aims at focusing only on the content of a joke. We may, in principle, agree on the premise that when a comedian puts some creative efforts, his creative skills should be protected. Whenever we face an object that can be regulated, law seems to be the obvious regulator. However, the question that arises is, should this regulation be based in law? Lawrence Lessig, in his book, Code 2.0, suggests that essentially, there are four regulators: Market, norms, law and architecture. In this post, I adopt this very framework of regulation discussed by Lessig to understand the regulability of jokes.

Market and evolving architecture of jokes

In early 20th century stand-up comedy, the jokes mainly comprised of one-liners which were considered to be the common property. Later, the creation of jokes itself became more important. This can be attributed to the market where competition required the generation of joke content and not just performance. Therefore, comedians found themselves more invested. This was also affected by several changes in comic markets which furthered the demand for content.  This market demand also changed the structure of jokes in stand up comedy. The jokes, which earlier took the form of one-liners, were now divided into set-up and punch line. This shows the interaction of market and architecture as regulators of stand-up comedy industry. In the following sections, I will discuss the relevance of market and architecture in evolving norms and legal rules.

Evolution of norms in Stand-up comedy

Some of the classic writings on jokes considered the protection purely in terms of copyright. However, the later studies have argued that due to the existence of the norms in the industry of stand-up comedy, there is no need of legal protection. The norms governing the industry, though informal and without any legal backing are effective and extend from ostracism and badmouthing to at times, physical violence.

Earlier, when the jokes were mainly one-liners, the repetition of jokes was more acceptable and the rights of the creator existed in performance rather than in the joke content. However, a study conducted by Oliar and Sprigman shows that with later changes in the structure of jokes, the norms that exist in the industry of stand-up comedy no more recognise joke-theft justified. Further, the norms of the industry no more recognise the jokes themselves as commons. Therefore, these market changes also affected the change in norms of stand-up comedy industry.

Law as a regulator of IP rights over joke

A joke is essentially a literary creation like a poem, story etc. Therefore, at least in theory, it will merit copyright protection. However, the theoretical protection itself is not sufficient to sustain a substantial legal claim. This is because of the idea-expression dichotomy that lies at the heart of copyright. Copyright law protects the expression and not the idea. Another important, though not doctrinal concern is the costs attached with litigation. Sometimes, the costs may just overwhelm the market value of joke. Though not through copyright, the issue of joke stealing has come up in front of courts in several different forms. For one-liners, the tort of passing off may be claimed, if that one liner is an identifier line for the comedian. One such claim was also successfully made in in Foxworthy v. Custom Tees, Inc. (879 F. Supp. 1200 (N.D. Ga. 1995)). In some instances, the cases have also been filed under the claim of misleading advertisement.

No property regulation can ensure the eradication of theft, but it should ensure that enough protection to property is given that investing in property remains worthwhile. At the same time, we should be careful in expanding legal protections to every creative activity. This also works with jokes. Therefore, the essential question that will have to be asked is: whether the regulators other than ‘law’ are sufficient to protect the creativity? As demonstrated above, market, architecture and norms collectively provide sufficient protection to creativity in context of jokes.