Who’s Punch Line Is It Anyway? Jokes Are Potentially Copyrightable, Says the U.S. Copyright Office.

For the many everyday citizens who have no recollection of when the New England Patriots won Super Bowl XLIX against the Seattle Seahawks after a “questionable” play call, comedy blogger Robert “Alex” Kaseberg’s (“Kaseberg”) saves the day.  Thanks to his witty remarks, and the legal controversy that subsequently unfolded, the world may never forget. Kaseberg wrote in his blog “A Little Bit Bad” on February 3, 2015: “Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll”. Pete Carroll is the Seahawk’s head coach, and was at the time of the fateful “Big Game.”  The U.S. Copyright Office seems to have gotten the joke, at least on the second telling.

Kaseberg originally sought to register the joke as a two-sentence 27-word textual work, titled “A LITTLE BIT BAD, Blog Content, Brady Joke February 3, 2015” (the “Work”).  The U.S. Copyright Office federal review board (the “Board”) denied Kaseberg’s first request to register the Work. Kaseberg later sued, among others, Conan O’Brien, and his production company Conaco, after the late night host told a similar joke during his show.  On May 12, 2017, the U.S. District Court for the Southern District of California ruled partially in Kaseberg’s favor, holding that he was entitled to a “thin” copyright in the Work.

On July 17, 2017, the Board released a decision after reconsidering Kaserberg’s second request to register the Work. This time, the Board found that the Work “exhibits copyrightable authorship and thus may be registered.”  The Board also noted that its decision to reverse the refusal to register the copyright claim in the Work and finding the Work copyrightable was consistent with the court’s decision in the Conaco case that “th[e] Work merits thin copyright protection.”

The Board found the Work to warrant copyright protection because it was “sufficiently creative” under the Supreme Court’s test set forth in Feist Publications Inc. v. Rural Telephone Services – that is, only a “minimal degree of creativity” is required for a work to meet the threshold for copyright protection.   But the Board cautioned that “works with a thin copyright ‘reflect only scant creativity’”. This, of course, begs the question: how does one measure scantiness? Per the U.S. District Court for the Eastern District of New York in Made Toy Manufacturing Corp. v. Goffa International Corp., “scantiness may exist because the work is composed of elements in the public domain, and it is only the organization of those elements that is protectable.” For instance, an anatomically correct statue of an animal may warrant only “thin” protection because an animal’s physiology is in the public domain, and only the specific creative expression of that anatomy in tangible form would be protected.

While the Board’s decision regarding Kaseberg’s Work demonstrates that jokes can be copyrighted, it does not set any clear boundaries concerning what jokes will be allowed to register.  Only further decisions concerning registrations (both granting and rejecting applications) and court cases will tell the story once a body of joke registrations and case law is established.  For instance, will there be a word threshold?  Words and short phrases are expressly not copyrightable, so how long must the joke be?  Are jokes that have been around for decades (if not longer) in the public domain, or are they copyrightable if they are sufficiently changed (think chickens crossing roads and people walking into bars)?  Time may answer these questions, particularly if comedians are now emboldened to try to protect more of their shorter-form works.  And time does fly; especially if one throws a clock out the window.