United States: 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 occurred at a comedy club, or during a news report commenting on a comedian's controversial joke; (2) whether the joke was new material that had not been publicly performed; (3) whether the infringer copied the set-up of the joke, or its punchline; and (4) whether the infringement occurred during a single live performance, or was posted on social media or included on a comedy album, thereby negatively impacting the market for the joke.

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. § 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. § 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
17 Oct 2017, Seminar, California, United States

Please join us for Sheppard Mullin's Labor & Employment Law Update & Happy Hour Seminar Series. 2017 presents significant developments in California labor and employment laws that will affect the way you run your day-to-day business operations. We will provide analysis and insight on these new laws, as well as offer practical advice and helpful tools for employers to protect their organizations from liability in the workplace.

17 Oct 2017, Seminar, California, United States

Covering topics such as promotions and sweepstakes, mobile advertising challenges, privacy considerations, claim substantiation and more, this expansive program will equip you with the tools you need to practice advertising law today.

18 Oct 2017, Seminar, Santa Clara, United States

The All Hands Meeting is a unique, multifaceted and affordable annual event tailored to the special needs of in-house professionals whose companies rely upon intellectual property. Scores of cutting-edge CLE presentations address the spectrum of legal, regulatory and ethical issues this community faces on a daily basis.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.