There is an interesting case pending in the Southern District of California that answers the question: Are jokes copyrightable? Robert Kaseberg for has sued Conan O’Brien for infringing his copyright in some jokes that he wrote and posted on his blog prior to Conan’s telling of very similar jokes. Conan moved for summary judgment, which was granted as to one joke that was shown to be created before Kaseberg, and as to another joke that was shown to be sufficiently different. However the court denied summary judgment as to the other jokes, confirming that jokes are copyrightable, although the court agreed with O’Brien, that jokes are only entitled to “thin” copyright protection. The Court said that there was “little doubt that the jokes at issue merit copyright protection,” however that protection was constrained by their subject matter and the conventions of the two-line, setup-and-delivery paradigm. The Court explained:
Each joke begins with a factual sentence and then immediately concludes with another sentence providing humorous commentary on the preceding facts. Facts, of course, are not protected by copyright. Feist, 499 U.S. at 345. And although the punchlines of the jokes are creative, they are nonetheless constrained by the limited number of variations that would (1) be humorous (2) as applied to the specific facts articulated in each joke’s previous sentence and (3) provide mass appeal. This merits only thin protection. The standard for infringement must therefore also be some form of “virtual identity.”
The court found sufficient difference as to one joke, but as to the others, the court concluded there was a triable issue of whether the jokes were sufficiently similar.