Jay Leno, The Tonight Show comedian, had sued Judy Brown and her book publishers for copyright infringement for publishing his jokes without permission in several joke books. Other comics such as Rita Rudner and Bob Ettinger were also named as plaintiffs in the copyright lawsuit, which was filed in US District Court in Los Angeles. NBC Studios, which produces The Tonight Show and is the copyright owner under the work-for-hire doctrine, was also a plaintiff in the copyright infringement case.
Judy Brown was accused of publishing books with jokes from various comedians – although she did give credit to the authors of the jokes. Leno’s copyright attorney had argued that by naming the source of the material, Brown admitted that she was not the true author and had willfully infringed on the comedians’ copyrights.
“I thought it was important to make it clear that jokes are protected like any other art form,” Leno said in a statement. In fact, Compendium II of Copyright Office Practices § 420.02 provides for copyrighting jokes and comedy routines if they contain at least a certain minimum amount of original expression in tangible form. However, short quips and slang expressions consisting of no more than short phrases are not registrable. Further, the copyright protection in jokes only applies to the “expression” (i.e. the way the words are arranged) and not the “idea” itself. See Gibson v. CBS, Inc., 491 F. Supp. 583 (S.D.N.Y. 1980) (the court dismissed a copyright infringement lawsuit involving a comedy skit where the only similarity between the two routines involved people pretending to be eggs).
Under the out-of-court settlement, Brown and her publishers agreed to immediately cease the distribution, manufacture and sale of Brown’s joke books and to pay an undisclosed monetary amount to plaintiffs.
PRACTICE NOTE: Copyright registration is a relatively inexpensive form of intellectual property protection that is often overlooked by businesses owners. For example, websites and marketing materials may be copyrighted by businesses in order to protect against infringers. Copyright protection extends to a broad range of materials – even the makeup designs applied to actors in the Broadway musical Cats were deemed to be copyrightable. See Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236, 243, 247 (S.D.N.Y. 2000).