The Last Laugh: A Case Study in Copyright of Comedy and the Virtual Identity Standard

Initially, courts have deferred to standard copyright analysis to judge the infringement of jokes. However, now that jokes are becoming more diverse, courts are differentiating their analyses accordingly, applying different standards for different jokes. One such standard, the virtual identity standard, is beginning to gain traction as a viable solution to determine substantial similarity of a certain category of jokes: those grounded in facts rather than fantasy. The virtual identity standard found its momentum in the recently settled case Kaseberg v. Conaco, LLC, 260 F. Supp. 3d 1229 (S.D. Cal. 2017), in which a freelance comedian sued Conan O’Brien, alleging joke theft.

This article argues that the virtual identity standard is the correct standard to judge infringement of those fact-based jokes and yields positive implications for the comedy industry. While virtual identity requires a higher bar for plaintiff comedians claiming infringement, it ultimately incentivizes creativity among joke creators and facilitates open expression of comedy.

Virtual Identity Is the Correct Test for Infringement for This Type of Comedy

While extending virtual identity to other copyrights for pictorial, graphic, and sculptural works, courts have generally been hesitant to extend virtual identity to other mediums of expression. See generally Sophia & Chloe, Inc. v. Brighton Collectables, LLC, 708 F. App’x 460 (9th Cir. 2018) (jewelry); Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003) (jellyfish sculpture). But see Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2017) (declining to extend virtual identity to musical compositions, citing the wide range of possible expression for music). For example, courts have typically excluded musical works and comedy from the virtual identity standard. In fact, the Ninth Circuit has explicitly said that “[m]usical compositions are not confined to a narrow range of expression.” Gaye, 895 F.3d at 1120 (expressly distinguishing music from the graphic interfaces at issue in Apple Computer v. Microsoft Corp., 35 F.3d 1435, 1444 (9th Cir. 1994), and the jellyfish sculpture at issue in Satava). Thus, the virtual identity standard need not be proven in those cases. Id.

The court in Kaseberg, perhaps recognizing the similarities between music and comedy, necessarily narrowed the application of virtual identity, finding the standard appropriate only because the jokes at issue were largely composed of unprotectable facts. Kaseberg, 260 F. Supp. 3d at 1244. Unprotectable facts, intertwined with and disseminated by social commentary, create different problems that the dissemination of music does not contemplate. Most notably, the range of viable expression for these types of jokes was quite narrow, which distinguished them from the vast range of expression in the musical world. In addition, the intellectual property rationale promoting freedom of public information directly implicates humorous social commentary as a platform for that information. While music has its place as an effective medium for public discourse, comedy’s status as a direct source of public information sufficiently warrants a higher level of scrutiny for infringement. See Jeffrey Gottfried & Monica Anderson, “For Some, the Satiric ‘Colbert Report’ Is a Trusted Source of Political News,” Pew Research Ctr., Dec. 12, 2014.

Thus, the decision to use a virtual identity standard for jokes in Kaseberg presented an instance of first impression. Kaseberg, 260 F. Supp. 3d at 1243. The Kaseberg court gave compelling reasoning for relying on virtual identity:

[T]he jokes here are . . . constrained by their subject matter and the conventions of the two-line, setup-and-delivery paradigm. 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. 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 must therefore also be some form of “virtual identity.”

Id. at 1245.

Given the constrained nature of the jokes at issue and the commercialized reliance on a factual basis for humor, the court correctly invoked the virtual identity standard for these thinly protected jokes. Extending virtual identity from visual works to written works follows a natural progression and addresses similar concerns. For example, the range of viable expression was narrow in these cases. The joke structure at issue relied on social commentary of factual material, which necessarily limited the number of variations possible to achieve humor. Also, the setup of each joke was only two sentences. The short form of the joke, especially after stripping away the unprotectable facts, left very few original elements to be infringed. Such a limited structure warranted both thin protection and a virtual identity standard for infringement.

In addition, the court must consider the policy implications. Giving protection to a joke’s punch line gives exclusivity over that joke. While exclusivity protects the joke’s creator, it prevents anyone else from expressing that joke in the same manner. Exclusivity of a joke, especially of one so heavily grounded in unprotectable fact, must remain relatively free for public expression. Otherwise, copyright protection of these factual-based jokes could give one person control over public dissemination of information by precluding anyone else from using similar social commentary, going directly against the rationales undergirding the intellectual property regime created at the founding. See U.S. Const., art. I, § 8, cl. 8.

Future Implications for Comedy

On May 9, 2019, Conan O’Brien penned a letter to Variety explaining his decision to settle the lawsuit with Kaseberg while continuing to deny any joke theft whatsoever. Conan O’Brien, “Why I Decided to Settle a Lawsuit over Alleged Joke Stealing,” Variety, May 9, 2019. Conan defended his writers’ integrity and simply explained that in today’s technologically savvy culture, “tweet-saming” is an unavoidable occurrence. Id. (“Tweet-saming,” a term coined by Caroline Moss of CNBC and Melissa Radzimiski of the Huffington Post, is used to describe a commonplace phenomenon where several people inadvertently tweet the same jokes around the same time, something Conan describes as the “parallel creation” of jokes. Id.)

Unfortunately, we will never know how a court would actually apply virtual similarity to these thinly protected jokes. Even so, the use of virtual similarity in this context is all the more likely going forward, and the implications could be far-reaching. In particular, three burning future implications are left in the wake of virtual identity and fact-specific jokes: incentives for the creation of comedy, the effect on public accessibility of the comedy industry, and the effect on the self-vigilant societal norms within comedy.

Virtual Identity Incentivizes More Variation in Comedic Expression

On its face, virtual identity seemingly destroys incentives for amateur and unknown comedians to continue producing comedy grounded in facts. With a high bar to prove infringement, comedians trying to make a name for themselves open up their work to rampant poaching by bigger names in the industry. To make matters worse, those comedy poachers might be unlikely to give credit to the comedians they are stealing from. Kaseberg, for example, initially had little problem with the idea that his jokes were stolen—he merely wanted to be recognized as their creator. See Kaseberg, 260 F. Supp. 3d at 1233–34. The record also suggests that Kaseberg did not necessarily crave recognition from the public, but rather wanted recognition from someone as famous as Conan O’Brien and his writing staff. See id. Without such recognition, performers just beginning to dip their feet in the comedy pool could likely stop creating comedy altogether, harming the ultimate goal of public discourse.

However, the more important consideration is to determine where the incentive to create comedy actually comes from. Economics play an obvious role, but perhaps the biggest incentive is creation for its own sake. Many comedians immerse themselves in their craft, finding comedy a source of mental and psychological relief, able to poke fun at their own problems. Mary O’Hara, “How Comedy Makes Us Better People,” BBC, Aug. 30, 2016.  Others simply enjoy making people laugh. While using humor as a source of income is a likely consideration of any amateur comedian, the real incentive to create is largely intrinsic.

A virtual identity standard imposes no negative effect on the intrinsic value of a comedian’s jokes. A higher bar for infringement means that more comedians can express their views on more topics without fear of overstepping someone else’s exclusivity over a punch line. More expression only increases a comedian’s arsenal of subject matter, thus allowing comedians to create a wider range of jokes and contribute to public discourse to the benefit of themselves and the public.

While Kaseberg might initially have complained of such a high bar, he likely would have prevailed in part, as would comedians in general. The narrow application carves out only a narrow class of jokes subject to the heightened virtual identity standard. If anything, the case of Foxworthy v. Custom Tees, Inc., 879 F. Supp. 1200 (N.D. Ga. 1995), now has an outer limit: Two comedians can tell the same joke (in this case, a joke grounded heavily in unprotectable fact) so long as the expression is not virtually identical. Such a standard allows more expression on the same topic and alleviates concerns of granting exclusive creative control over a joke poking fun at a specific fact. Comedians can freely create jokes in this fact-based realm without fear of infringing on another’s work while at the same time be confident that their own unique expression will be protected.

The virtual identity standard creates similar incentives for non-fact-specific jokes, or jokes more commonly found in stand-up routines. The application of the virtual identity standard in comedy extends only to jokes with few protectable elements, Kaseberg’s jokes among them. Other, more elaborate jokes, however, contain more than just a few unprotectable elements. Rather, oftentimes the entire joke can be considered uniquely expressive and is therefore entirely protectable. A classic example is the comedy of Eddie Izzard, a renowned British comedian known for his complex and elaborate stream-of-consciousness comedy persona. Betsy Price, “Eddie Izzard Heads to Wilmington,” Delaware Online, July 15, 2016. The complexity and depth of expression that Izzard offers to his audiences warrants much stronger copyright protection because there are so many expressive elements. See Howard B. Abrams, “Originality and Creativity in Copyright Law,” 55 L. & Contemp. Probs. 3 (1992). Comedians may take notice of the virtual identity standard and resort to creating more unique and elaborate comedy, more similar to Izzard and less like Conan. More creative and fantastical comedy, untethered to factual reality, naturally expands the variation of comedic expression.

Virtual Identity Improves Public Accessibility to the Comedy Industry

If comedians remain incentivized to create comedy, even with a virtual identity standard, the amount of viable comedy will continue to grow. Thus, because more comedy is being created, the public has wider and more meaningful access to comedy, especially to those jokes and commentary grounded in factual material.

An excellent example is the late-night television comedy scene. Jimmy Kimmel, Stephen Colbert, Seth Meyers, and Jimmy Fallon, to name a few, all have different brands, styles, and deliveries of comedy. Yet, they routinely provide humorous commentary on very similar topics, often referencing the same current event. See Kelly Lawler, “2018 in Review: What Worked (and What Really Didn’t) in Late-Night TV,” USA Today, Dec. 12, 2018. Conan O’Brien himself acknowledges this in his letter to Variety, explaining that this overlap has been happening for decades, and while comedians try to avoid it, it is accepted as inevitable. O’Brien, Letter to Variety, supra. While each late-night host might tell similar jokes, each has a devoted fan base that tunes in every night to watch. See Lawler, “2018 in Review,” supra. Wider ranges of comedy offer the public more choices of diverse expression. More importantly, it seems as though the public is ready and willing to take advantage of those choices.

A virtual identity standard serves only to solidify such diverse expression on similar issues. Without a higher bar for infringement, the first person to make a joke tied to a particular topic would get exclusivity over any further humorous expression on that topic. Such exclusivity would bottleneck public access to comedy, forcing comedy consumers to cast a wider net to look for humorous commentary on certain subjects. Clamping down public access to more comedy cuts directly against both the purpose of copyright law and the foundations of the current comedy resurgence.

Virtual Identity Reinforces the Societal Norms of Comedy

Despite the development of a legal framework for the protection of jokes, comedians are likely to remain reliant on existing societal norms within the industry. Many of the social norms remain untouched—for example, the “joke stealer” reputation will continue to carry massive consequences for those burdened with its label. Conan O’Brien, even after settling the lawsuit, has remained adamant that no stealing took place and any similarity in expression here was simply an unavoidable by-product of a technologically savvy culture. O’Brien, Letter to Variety, supra. Conan points out that 34 other people tweeted the same Tom Brady joke at issue here, but only one felt he had been “robbed.” Id. A virtual identity standard reinforces those social norms by recognizing the immense overlap of expression on a platform like Twitter and allowing the comedy industry to largely regulate itself.

A virtual identity standard, while lingering behind the social norms of comedy, does provide a tool of last resort. Kaseberg attempted to rely on the rigorous social rules within the comedy industry, giving Conan O’Brien and his writers plenty of opportunities to remedy any perceived wrongdoing. Only after months of relying on those norms did Kaseberg resort to filing suit. The lawsuit has not stopped Kaseberg himself from continuing to create more of these jokes. See Alex Kaseberg (@alexkaseberg), Twitter. However, it could stop any number of present and future amateur comedians from breaking into the industry. Conan O’Brien rightfully points out that several people (especially on Twitter) consistently make the same jokes at the same times—but certainly comedians who pride themselves on originality of expression would want to halt joke theft where it occurs. We may never know if the Conan staff stole Kaseberg’s material, but there is now a workable standard to remedy any future, deliberate joke theft that will not upend the comedy industry.

Matthew L. Pangle is a recent graduate of the University of Richmond School of Law in Richmond, Virginia.

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