With the understanding of why a comedian's intellectual creations
should be protected, this Part considers whether copyright law can
adequately afford that protection. The Copyright Act outlines the
requirements for attaining copyright protection. Specifically,
copyright protection is afforded to "original works of authorship fixed
in [a] tangible medium of expression." 78 Generally, this provision is
read to require two elements: fixation and originality.7 9
Doctrinal and practical barriers prevent these elements from being
easily applied to the comedy industry. The first doctrinal barrier
relates to the fixation requirement, which mandates that copyrightable
material must be sufficiently permanent in a tangible medium. Jokes
could be written down and fixed in a tangible medium, but generally
they are performed orally or told as part of a performance. 82
Additionally, many comedy routines are ad-libbed and depend on
audience interaction. 83 Because of this, they may often be told in
different forms on different nights, making it difficult to protect the
varying forms of expression.