Knock Knock – can copyright be claimed in a joke?
Knock Knock
Who's there?
Irish
Irish who?
Irish stew for pinching my joke!
OK, so it's not that funny; and I admit that while I might try to argue that the punchline (unfunny as it is) is original, the rest I had heard before, or read before, somewhere, many years ago, I can't remember where.
But isn't that the whole point about a good joke? You remember it; you tell it to someone else (though maybe mix it up a bit); they pass it on – so it goes on and so (eventually) a new joke might be born as the original is confused and mutates.
But is it possible to claim copyright in a joke? The question is highlighted by recent publicity given to claims that Keith Chegwin has "stolen" jokes and passed them off as his own on Twitter.
So far, the dispute appears to be going no further than a rather public exchange of "tweets" though has been given significant publicity in the press. As yet, there is no threat of any legal action, it more being a case of there being seen to be a form of "gentleman's agreement" among comics not to use each other's work. Before the internet and certainly before television, where jokes were repeated in clubs, there was widespread use of other's material; but now, once a joke is told on the internet, it no longer seems original and is almost instantly out of date.
So does the creator of a joke have any legal protection?
In theory, copyright might apply, and if it can be established would give protection. Indeed, while the furore over Mr Chegwin's repeat of a joke is based on it being published (Twitter is equivalent to the internet) copyright would also be infringed by retelling the joke verbally.
Copyright only applies where the work is "original" and there might be argument that every joke is inspired by one you heard before. With the one-line gags which are used by so many of the "modern" comedians, it would be difficult to see them being classed as a "work", but if there is a relatively detailed plot and it does involve a particular situation which may appear somewhat unusual (at least in joke terms) that may be enough. Certainly, simply changing the reference from an Englishman, a Scotsman and Irishman to three people from Glasgow, Edinburgh and Aberdeen would not be enough claim that it was a "new" joke; but the "owner" of the joke would also have to establish that it was an original work and that, in itself might pose a problem.
The Edinburgh Fringe will provide those attending with a marvellous opportunity to hear the best (and worst) jokes from a wide array of performers, some established, some amateur, some trying to start their career. The likelihood is that however original everyone believes their material to be, an audience member somewhere will be saying "but didn't I hear that before?"
Will audience members be called as witnesses? Unlikely, and once the joke is told, in reality its value (and therefore the reason for protecting it) has diminished in "resale" terms. So maybe its not so much a question of originality which matters, but to quote a well known comic "it’s the way I tell them".
AUTHOR: Scott Kerr
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