Singing Loudly

Over at Crescat Sententia Will Baude asks an interesting question about copyright: can a joke be copyrighted and would retelling it be considered fair use? If no, then how much would you have to change and tweak in order to add enough original material to make it your own?

Obviously something like a stand up routine by Jerry Seinfeld is copyrightable. Basically, copyright is an original work of authorship fixed in any tangible medium of expression. If Seinfeld tells a joke about a parking garage I could get away with telling a joke about a parking garage. I'm only taking the idea of the joke and making it my own. However, if I steal his joke and tell it to a few friends it would probably be infringement. However, he would never sue me because I would have a fair use defense. Mainly three of the four aspects of fair use would weigh in my favor: it doesn't hurt him, I wasn't using it to make money, and the amount of his work that I used was minimal.

The separate question is whether if I come up with a witty joke on the spot if it is copyrightable? That would be a fun question to answer on an exam because it could really be argued. I think that it largely depends on circumstances, however, in most instances it probably would not meet the copyright requirements. Copyright does not protect facts, generalized themes and ideas, subthemes, stock themes, general imagery, literary formulas, actual, true or historical events, episode or scenes a faire, scenes that necessarily result from the choice of a setting situation.

As a sidenote: Jeff Foxworthy has a trademark on the "You might be a redneck" jokes. This might be the one of the case I have read that has jokes in the opinion, Foxworthy v. Custom Tees, 879 F. Supp. 1200 (1995). This case is fun in that it includes a few jokes. You can see great ones like -- "You might be a redneck if . . . you've ever financed a tattoo." Or maybe you would like to read this one, " You might be a redneck if . . . your two-year-old has more teeth than you do." It's all true that this opinion tells Foxworthy jokes. Is this court infringing? Is it necessary for them to include four of these jokes for the reader to get the idea of a "You might be a redneck if..." joke?