The Kaseberg lawsuit also raises issues about whether certain jokes qualify for copyright protection, in the first instance. In order to be subject to copyright protection, a work of authorship must be "original." See 17 U.S.C.S. ง 102. Thus, to the extent that a joke is based on a preexisting or "stock" joke, it may not be protected under copyright. See, e.g., Marvin Worth Productions v. Superior Films Corp., 319 F.Supp. 1269, 1272 (S.D.N.Y. 1970) (concluding that certain jokes at issue in copyright infringement action "involve[d] stock situations" and, therefore, lacked "the quality of originality to render them copyrightable"); Hoffman v. Le Traunik, 209 F. 375, 379 (N.D.N.Y 1913) (denying request for preliminary injunction where the plaintiff did not meet his burden of establishing that the expressions in his monologue were "original with him"); Reader's Digest Association, Inc. v. Conservative Digest, Inc., 642 F.Supp.144, 146 (D.D.C. 1986) (rejecting copyright infringement claim based on digest's copying of jokes were evidence revealed that plaintiff was not the source of the jokes, but, rather, took the jokes from other periodicals).
Even where a joke is deemed to be "original," the nature of the joke may impact whether it qualifies for copyright protection. For instance, one of the fundamental tenets of copyright law is that "ideas" embodied in a work of authorship are not protected. See 28 U.S.C.S. ง 102(b). Rather, copyright protection is limited to the author's "expression" embodied in the work. Thus, if a comedian were to take the underlying idea of another comedian's joke and create his or her own original expression of the idea, there would likely be no infringement. See, e.g., Reyher v. Children's Television Workshop, 533 F.2d 87, 92-93 (2nd Cir. 1976) (holding that, although the two stories at issue were essentially the same, the similarity extended only to the idea of the story and not the particular expression and, therefore, no infringement occurred). Moreover, under the merger doctrine, even a comedian's particular expression of a humorous idea may not be subject to copyright protection. The merger doctrine provides that, "where there are so few ways of expressing an idea, not even the expression is protected by copyright." BUC Int'l Corp. v. International Yacht Council Ltd., 489 F.3d 1129, 1143 (11th Cir. 2007). Accordingly, where a humorous idea can only be expressed in a limited number of ways, the "idea" and "expression" of the joke could be deemed to merge, such that not even the comedian's expression would be protected by copyright.
One of the more recent cases to address the copyrightability of jokes is Foxworthy v. Customer Tees, Inc., 879 F.Supp. 1200 (N.D. Ga. 1995). In that case, comedian Jeff Foxworthy – famous for his "you might be a redneck if..." jokes – brought an action for copyright infringement, among other claims, against a company that sold tee-shirts bearing exact copies of Foxworthy's redneck jokes. In opposition to a motion for a preliminary injunction, the defendants argued that Foxworthy's jokes were not "original" because Foxworthy's testimony established that he sometimes received ideas for his redneck jokes from others. The court disagreed, noting that the issue was not whether the ideas for Foxworthy's redneck jokes were original, but, rather, whether Foxworthy's expression of those ideas was original. To that end, the court noted that "two entertainers can tell the same joke, but neither entertainer can use the other's combination of words" – i.e., the other's expression. Id. at 1219. The court concluded that the defendants had copied the protected expression of Foxworthy's jokes and, therefore, Foxworthy had shown a likelihood of success on the merits of his copyright claim.
While Foxworthy provides some solace to comedians seeking to protect their jokes under copyright, the decision focused only on whether Foxworthy's jokes were "original" and did not delve into the intricacies of the idea/expression dichotomy or the related merger doctrine. The claims at issue in the Kaseberg lawsuit may provide the district court with just such an opportunity.
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