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Written by : Carmela Jesiolowski
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whether a joke can be copyrighted is an interesting issue stealing jokes is nothing new to comedy writers yet it is uncommon for comedians to use copyright infringement lawsuits to protect their jokes because of the costs involved moreover due to the difficulty improving ownership of a joke success rates in such lawsuits are low in theory a joke can be copyrighted but there are numerous barriers that might not allow a plaintiff to gain copyright protection we will discuss each of the five hurdles a plaintiff must overcome to succeed the first hurdle that a plaintiff must overcome is referred to as the idea verse expression dichotomy the plaintiff must prove that the expression was infringed upon not an idea an expression must be a specific arrangement of designs or words federal copyright laws protect the expression of ideas but not the ideas themselves the idea verse expression dichotomy was introduced in Nicholls verse Universal Pictures Corporation in that case a playwright sued a film company for use of a similar comedic story which entailed a Jewish man marrying an Irish Catholic woman whose families both disapproved of the marriage the court in nickels found that the comedic concepts lapew nning the stereotypical characters were ruled to be universal ideas and thus not eligible for legal protection under copyright laws to successfully assert a copyright infringement claim a plaintiff must prove that the expression of the idea was infringed upon by another party it is the expression of the idea that must be original to the creator to possibly gain legal protection through copyright laws the second hurdle faced by plaintiffs when seeking copyright protection for a joke is that the plaintiff must demonstrate that the subsequent use of the joke was not an original and independent creation many times comedians tell jokes pertaining to what is trending in news or culture for example in their Law Review article entitled emergence of intellectual property norms the authors discuss a joke about the construction of a border fence between the United States and Mexico and how several comedians in the 2000s used this idea to create jokes each of the comedians the same punchline asking the question who do you think is going to build that wall yet each comedian told the joke with slightly different spins altering the jokes introduction the court found that telling a joke with slightly different words which in the industry is called a right around alleviated all potential copyright infringement claims because right around allowed subsequent writers to claim originality these right arounds make it harder for a plaintiff to claim copyright protection because future comedians are placing their own unique twists on a joke making them their original productions a third hurdle further complicates a plaintiff's copyright protection claims under copyright laws merger doctrine if there are limited ways to express an idea the idea will merge with the expression of the idea and the expression will receive no copyright protection the merger doctrine was first expressed in 1967 in the Supreme Court case of Morrissey V Procter and Gamble Company they are the plaintiff copyrighted a contests rules that involve using the contestants social security numbers for identification purposes the court held that the idea of using social security numbers for identification could not be infringed protecting a contestants identity could only be done in a limited number of ways the idea of protecting contestants identities had merged with the expression of the idea which was the use of social security numbers consequently the plaintiffs rule could not obtain copyright protection a fourth hurdle plaintiff must overcome concerns the length of time that a creative work or joke is accessible by the public a plaintiff's original creative work must be permanent enough so that it can be reproduced by others longer than a transitory duration for example Algol Axel a los angeles-based freelance writer composed a joke and posted it on Twitter soon afterwards many Twitter followers used Lex's joke as their own and shared it with their own followers Lexel informed Twitter and the social media platform removed the offending tweets a lawsuit did not ensue but legal analysts contended that even if Lexel had pursued legal action she would not have been successful the tweet did not satisfy the fixation element because Twitter removed the tweet within a short amount of time after it was originally posted and the tweet was not available to the public for long enough for it to be reproduced the fair use doctrine codified in 17 USC Section 107 can also preclude a plaintiff from claiming copyright infringement this doctrine allows for the use of copyrighted material by another for commentary reporting teaching or research whether a subsequent use equates to fair use is determined after weighing the different elements in the following four-part balancing analysis 1 the purpose and character of the use whether it is commercial or for educational purposes to the nature of the copyrighted work 3 the amount and the substantiality of the portion used for whether the effect of the use on the market harms the current market for the original copyrighted material the case of TCA television corporation verse McCullum focused on the fair use doctrine in a copyright infringement suit a Broadway play used part of a famous joke who's on first a comedy routine developed by American comedians Albert and Costello in the case the heirs of the comedian's sued the plays writers for copyright infringement the legal issue for the court became whether the unauthorized use of the joke in the play qualified as fair use the court held that the playwrights subsequent use of the famous joke satisfied fair use and did not infringe upon copyrighted material in its opinion the court focused on the fourth element of the four prong balancing test the court reasoned that the Broadway playwrights utilized who's on first in a manner that wasn't intended to and did not harm the market for the original joke the market for abbott and costello schematic material remained the same and potential consumers did not stop purchasing these Abbot and Costello DVDs or videos to view this play instead as a result it was a fair use that precluded liability for unauthorized use of the copyrighted comedic routine Conan O'Brien's dilemma copyright infringement or smooth sailing in a recent copyright infringement suit against Conan O'Brien the plaintiff Robert Kay's Berg alleges that Conan O Brian and his writers unlawfully used case Berg's jokes case burg argues that after he posted four jokes on his personal blog each joke appeared in the monologue segments of O'Brien's late-night talk show Conan the plaintiff filed copyright actions for each of the jokes in 2015 and he calls the joke's on his blog literary works the applications are still pending case burg is seeking actual statutory and increased statutory damages for the willful infringement the Court recently required the defendants to produce each piece of email correspondence sent prior to
Thanks for your comment Theola Kingsley, have a nice day.
- Carmela Jesiolowski, Staff Member
he folks today we're going to be discussing the differences between copyright and Trademark just a quick disclaimer to say that I am NOT an IP professional if you do require intellectual property advice please do seek out professional help so what is copyright copyright is there to protect your original creative works you can't copyright an idea you can copyright things like literary work dramatic works Musical and artistic work as long as they are in a tangible form what do I mean by a tangible form well things like books film recordings websites software photography paintings or graphic design elements like business cards or brochures having the copyright then gives you the exclusive rights to perform distribute make copies of or even make adaptations of your original creative work here in the UK there is no requirement to register your copyright it just happens automatically as soon as the work is created this may be different in your location so please check with your local Copyright Office or intellectual property office to get the full facts on how copyright is assigned in your country protection on copyright generally lasts for the lifetime of the author Plus 70 years again this may be different in your country so please check once you have created your work and the copyright is assigned you then have permission to use that little copyright symbol the little C inside the circle along with the year that the work was created however there is no requirement to use that little C symbol the copyright still remains with you at all times so let's move on to registered marks there are two types of registered marks and both of these can be used to protect the sale of products or services for a business the first is the trademark which is used to protect goods or products and the second is a service mark which you would use to protect services that you provide generally though people tend to use the town trademark to cover both our trademark and the service mark for the purpose of this video I will be using the term registered mark which covers both examples of things that can be covered by a registered mark would be a company name a slogan a sound a color under logo once you have that registered mark you have the exclusive rights to use that mark with your product or service it allows you to stop other companies businesses or organizations from using a similar mark to promote or sell a similar product or service what you can't do is you can't prevent someone from using a similar mark if they are using it to promote or sell a dissimilar product or service let's look at this example of two locals one for Sun Microsystems and the other for Columbia Sportswear now visually these two logos are very similar especially if they were both in black for example and you just had a quick glance at the logos the reason that both of these similar logos can exist and be registered as marks is that there are two completely different industries Sun Microsystems is in software and computing and Columbia is in sportswear two very different industries now however let's say Sun Microsystems were in the spa for businesses while then we would have an issue because they would both have similar marks selling or trading similar products this can't happen so what would happen here is that the company that registered their mark first would be able to prevent the second company from registering the mark which is similar to theirs and in a similar industry in its simplest form registered marks are there to help the consumer differentiate between brands and the products and services that they sell if when you try to register a new mark the internal Property Office will look at existing marks and if they feel that by registering your mark this may cause confusion for the consumer when they are looking to buy a product or service from someone who is in the same industry as you they will deny you that registration once you have registered your mark though you can use the little R symbol inside the circle next to your logo or your brand name unlike copyright registered marks can last indefinitely but they do have to be renewed every 10 years one thing that you cannot do is you cannot register a mark and sit it on a shelf for use at a later date for a registered mark to be viable it must be in constant use so those are the main differences between copyright under registered mark or as I mentioned earlier most people just use the town trademark I hope this cleared up any confusion you may have had in the past about the two terms and you can move forward safe in the knowledge that you have the correct understanding for both for more brand and design advice why not join hundreds of other brand rockers who have signed up to my rock your brand monthly email newsletter it's absolutely free and the advice that I give in there will help you to strengthen your brand and stand out from your competition head on over to rock your brand or quote at UK and sign up until I see you next time folks stay creative [Applause]
Thanks geitaR your participation is very much appreciated
- Carmela Jesiolowski
About the author
I've studied canadian history at Texas A&M University-Commerce in Commerce and I am an expert in history of the roman republic. I usually feel curious. My previous job was airline flight reservations administrator I held this position for 29 years, I love talking about surfing and netball. Huge fan of Kris Jenner I practice trapeze artistry and collect vintage cars.
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