Thou shal not steal is definitely the underlying point of all intellectual property rights, and Twitter reaffirmed this by deleting a tweet on a complaint made by Olga Lexell, a freelance writer from Los Angeles. Her premise was that she’s a freelance writer who makes her living writing jokes and since that’s her creation (intellectual property), other users didn’t have the right to re-post it without giving her due credit. This has definitely raised a lot of questions on whether jokes can actually be copyrighted under the copyright laws and more importantly, if such a right would be enforceable.

In order to give this a broader perspective, let’s consider jokes posted on social media as well as jokes made by comedians/stand-up comedians in recorded TV shows or live shows. Before going to the enforceability part of it, it is important to ascertain whether a joke can be protected to begin with.

Jokes posted on social media or blogs or any other print media, are protected as a copyright the moment they are created and therefore protection under the Act need not be specifically sought. However, in case of a dispute one would have to prove,

  • That one is the first creator of such a joke (if that’s possible!)
  • That the other party had knowledge of such joke and that such imitation is in fact infringement of the creator’s copyright

It is here that the idea-expression dichotomy comes into play. The joke is an idea which can be expressed in several different ways and if one comedian chooses to express it differently, then that may not amount to copyright infringement. This may be the case with live/recorded shows, however, in case of jokes that are ripped off word to word, this isn’t the best defence one can take.

As I mentioned earlier, Twitter deleted a post on a complaint stating that it was copyright infringement. As per the policy, the following information needs to be provided at the time of filing the complaint.

  • identification of the copyrighted work claimed to have been infringed
  • identification of the material that is claimed to be infringing or to be the subject of infringing activity
  • physical or electronic signature of the copyright owner or a person authorized to act on his behalf
  • contact information
  • a statement that such complaint is in good faith and also that the information provided is accurate, and, under penalty of perjury

So if the copyright owner can furnish such information, then one would be able to file complaints on Twitter. The main difference with this policy in US and India is that in India it would be hard to prove that a person has rights to a particular copyrighted work (unless ofcourse one has a registration/application) given that it is not mandatory to file a copyright application to take legal action for copyright infringement.

Jokes made by comedians/stand-up comedians in recorded TV shows or live shows are a little tricky, in as much that if the comedian is considered as a performed under the Act (defined below), then Performer’s Rights come into play.

“performer’ includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance

This would mean that the performer has economic rights for 50 years after the start of the year following the performance. In addition to this, the performer also has moral rights which means that the performer should be given credit for his performance and also that a performer can claim damages if his or her performance has been distorted, mutilated or modified in a way that would harm his or her reputation.

In the real world…

Licensing – Would it be practical for a person to license jokes and would anyone actually buy rights (exclusive or not) to use those jokes. May be yes, may be no. This is merely a legal proposition, but in reality would artists actually be open to the idea of using another artist’s jokes? I doubt they would, most definitely not pay for it!

Attribution rights – So you’re watching a stand-up comedy show and there’s an amazing joke and the audience can’t stop laughing. The next thing you know, the comedian is attributing rights of that joke to a fellow comedian. Personally, I don’t see such a thing happening in practicality, although it may be legally the right thing to do. However, this could work in case of jokes posted online, where the idea is to more to share!

Given all the complicated issues surrounding copyright and jokes, it’s not quite the joke after all. There are several aspects to it and the toughest of them all is enforcement of these rights, if one can prove it exists at all. So all you comedians and social media users out there, watch what you post and what you say because you never know what’s coming your way.

This article has been authored by Nikita, an IP Law practitioner.