Copyright Is Nothing To Joke About

Last summer, comedian Robert Kaseberg filed a copyright infringement suit against Conan O'Brien, among others, alleging that O'Brien incorporated four jokes written by Kaseberg in the opening monologues of his television show "Conan." According to the complaint, Kaseberg published each of the jokes - all of which were based on then-current events and news stories - on his personal blog and Twitter feed on various dates between January and June, 2015, only to have O'Brien feature the same jokes in his monologues on the same respective dates.

Copyright lawsuits involving the infringement of jokes are surprisingly rare. As a result, lawsuits such as Kaseberg's raise interesting - and largely unsettled - issues about the application of copyright law to comedy routines and jokes. For instance, one issue likely to arise in lawsuits involving "one-liners" about current events is whether the allegedly infringing joke is simply the result of "great minds thinking alike." Indeed, even where two works are identical, the fact that the allegedly infringing work was independently created provides a defense to a claim of copyright infringement. See United States v. Liu, 731 F.3d 982, 991 (9th Cir. 2013) ("if a defendant did not copy as a factual matter, but instead independently created the work at issue, then infringement liability must be denied"). Thus, where a current event or news story lends itself to an obvious joke, a claim of copyright infringement may be subject to the defense of independent creation.

Additionally, fair use considerations may arise in copyright litigation involving jokes. The fair use doctrine, codified in 17 U.S.C. § 107, allows for the use of copyrighted works "for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research." The determination of whether a use constitutes a "fair use" turns on a four factor balancing test, which looks at: (1) the purpose and character of the use (including whether it is commercial nature); (2) the nature of the copyrighted work (including whether it has been "published"); (3) the amount and substantiality of the portion used use (including whether the infringer used the "heart" of the copyrighted work); and (4) the effect of the use on the market for, or value of, the original. See 17 U.S.C. § 107. In the context of a claim for infringement of a copyrighted joke, factors relevant to a fair use analysis could possibly include: (1) whether the alleged infringement...