“Ladies and Gentlemen, the best patent attorney in India is ….None other than Mr. Kan!
Please give Mr. Kan a loud applause.”
Kan stood up, bowed and slowly walked to the stage, waving.
The MoC read out his achievements as he got closer.
“Kan has achieved the extra-ordinary feat of putting in hundred years of work in his fifteen year career as a patent attorney.
Source: Work hours mentioned in his time sheets, which he was kind enough to share with us.
He is the only patent attorney in India to advise more than thousand clients in 2016.
Source: His Secretary’s notes.
And, Mr. Kan was instrumental in concluding the US-India IP partnership.
Source: Comment he wrote on his blog.
The hall, filled with about twenty people, fifteen of them Kan’s family members, erupted as he took the award he paid for.
Note: Adapted from a pre-existing joke.
Can the creator of the joke sue me for copyright infringement? The answer to that question would be guided by three enquiries:
Is the joke copyrightable?
If it is, is my version infringing?
If yes, is my use of the joke fair use or fair dealing?
Copyrightability of Jokes
Any work expressed on a tangible form, which is original and has a modicum of creativity is copyrightable provided it is listed as a protectable work under the copyright statute. Literary, Dramatic, Artistic, Musical, Cinematographic, Photographic and Sound Recording works are listed for protection under the Indian Copyright Act. Jokes can fit into several of these works. A written joke is a literary work, a performed joke captured on video or audio is a cinematographic work and/or sound recording, a painted joke is an artistic work, etc., and fitting jokes into one of the eligible subjects for protection is straight forward as long as the joke is captured on a tangible form. Most jokes are cracked in casual conversations, and are not necessarily expressed on a tangible form, and so, those jokes are not copyrightable. Simply put, if you crack a joke, and you do not take the effort to write it down, record it, or capture it on any other tangible medium, your joke does not get copyright protection.
For jokes expressed on a tangible form, it is relatively easy to establish independent creation for proving originality, and minimal extent of creativity always exists in most jokes. But it is not always as straight forward to establish that a joke is a protectable expression and not an unprotectable idea. Jokes are often the result of word and fact play, and encounter protectability issues because copyright protection does not extend to short phrases, facts, expression mergers, and so on.
Short Jokes, Facts and Copyrights
Generally, copyright protection does not extend to short phrases and slogans, and a joke that is very short may not merit protection unless it is very creative. The standards of the test for creativity here is much higher than the modicum of creativity test generally applied to longer works. For example, when we were at school, there used to be a one line joke, which used to send us into fits of laughter.
Some one would simply say, “Father went to church,” and all of us would burst out laughing. We used the involuntary response it solicited to good effect in many plays, and the joke was well documented in one or two of the scripts I had written. I did not create the joke though, and will not get into originality issues here.
“Father went to church” was a hit at school because church meant something in our minds, and church was not actually church, it was something else. Though it was, and is still probably a great joke in alumni meets, it is not copyrightable on various grounds. It is a short phrase, there is nothing creative about it, and it is a fact. What is the big deal about Father Francis going to church anyway?
Assessment of creativity for short jokes is subjective and experts/judges often disagree on protectability. For example, “Did you just qualify as an Indian Patent Agent? Welcome to the Bimbo Club,” may not be creative enough to merit copyright protection for me, but for some one else it might be creative enough.
Do you think this supposed joke is sufficiently creative for copyrightability?
“Did you say you copyrighted this?
Does that mean I can’t put you on my to do list any more?”
Jokes and Copyright Infringement
Once a joke passes all hurdles and is considered copyrightable, the next step is to prove that it has been infringed. The standard test for determining whether a work has been copied is the ‘Substantial Similarity’ test. In order to be infringing, a joke must be substantially similar to a copyrighted joke. Substantial Similarity is assessed based on different tests all of which try to determine if the expression in the copyrighted work has been copied. If the idea is the same, but expression different, a work will not be infringing.
Example
Joke 1: “Who is slower? Koala? or Copyright Office?
I will put my money on Copyright Office any day.”
Joke 2: “Copyright Office and Australian Koala belong to the same species.”
Joke 1 and Joke 2 are based on the same idea, but their expressions are completely different. One does not infringe on the other. Though they refer to the same office and the same animal and infer the same thing, their expressions are not substantially similar. Therefore, copyright infringement does not exist.
Copying any of the jokes verbatim, or with slight modifications would give rise to copyright infringement liability. Use of a copyrighted joke in a different mode, means, format or medium is also infringement, and actions like adapting a joke from a book into a comedy show or movie will give rise to liability. Providing attribution or reference will not relieve one from copyright infringement liability.
For example, you will be liable for infringement if you crack Khushwant Singh’s jokes from his books in a movie. You must take permission from the author/copyright owner if you wish to use the jokes.
However, if the jokes are in the public domain, you are free to copy them without fear of copyright infringement liability. You may copy, adapt, perform, and distribute jokes from Jerome K. Jerome’s Three Men in a Boat as the work is now in the public domain. You must, however, give appropriate attribution as moral rights may still subsist in the joke based on where you are using it.
Jokes and Fair Use/Dealing
Use of a joke will be exempt from copyright infringement if the use is fair, or the use amounts to fair dealing. The Indian Copyright Act provides for a long list of activities that are considered as fair dealing, and therefore, exempt from infringement. Over the years, courts have also created a non-statutory, common law fair use doctrine to exempt qualifying uses from infringement liability. The test of fairness may be based on the nature of the use, purpose of the use, public interest, extent of use, impact on the work’s market, and/or other relevant factors the Court deems fit.
Use of jokes for purposes of research, education, news reporting, and criticism would generally be considered as fair dealing. The same would normally hold true for performance of a joke in social gatherings, family functions, amateur clubs, educational institutions, and ceremonies. Profit motive may prove to be a determinative factor for determining fair use under certain circumstances.
For example, cracking copyrighted jokes in a cultural performance at IIM, Bangalore (IIMB), would most probably be considered as fair use, but performing the said jokes in a ticketed show for students might not be considered as fair use. Actions like performing the copyrighted jokes in a comedy show on television will rarely qualify as fair use/dealing.
Cracking copyrighted jokes during a casual conversation would be fair use, but cracking the same jokes during a chat show on television might give rise to liability.
As you can see, fair dealing/use determination is not objective except under extreme circumstances, and whether a particular use is fair or not depends on the nature, purpose, and circumstances of use among other factors.
The Right to Joke
Humour is a very important element of life. It makes a person happy, and adds to the beauty of life. You are free to crack jokes and have fun, but remember that jokes may be the subject of copyright protection, and the owner may not sit and watch while you use her jokes in commercial settings. Note that your right to crack jokes is not free from limitations.
Note: As you can see, I am not much of a joker. Please pardon me for the poor jokes in the article.
Citations
See Sections 13, 14, 51, and 52 of the Copyright Act, 1957 as amended in 2012
See Indian Express Newspaper (Bombay) Pvt Ltd v Jagmohan, ( AIR 1985 Bom 229);
See RG Anand v Delux Films and Others, (AIR 1978 SC 1614)
See Eastern Book Company v. D.B. Modak (2002 PTC 641)
See Dr.Reckeweg and Co. Gmbh. and Anr.Vs.Adven Biotech Pvt. Ltd (MANU/DE/0961/2008)
See Bleistein v. Donaldson Lithographing Co (188 U.S. 239 1903)
See Alfred Bell & Co. v. Catalda Fine Arts, Inc (191 F.2d 99 2d Cir. 1951)
See Feist Publications, Inc. v. Rural Telephone Service, (499 U.S. 340 1991)
See Key Publications, Inc. v. Chinatown Today Publishing Enterprises Inc (945 F.2d 509, 511 2d Cir. 1991)
See Darden v Peters (403 F.Supp. 2d 638 2005)
See Federation of Industries of India v. Kesavalu Naidu (CS OS No 596/2007)
See Godfrey Phillips India v. Dharampal Satyapal & Anr (MANU/DE/3015/2012)
See Khemraj Shrikrishandas vs. Garg & Co. and Anr. (AIR 1975 Delhi 130)
See Cook v. Robbins, (232 F.3d 736 9th Cir. 2001)
See Gingg v. Twentieth Century Fox Film Corp., (56 F. Supp. 701 S.D. Cal. 1944)
See Pendleton v. Acuff-Rose Publications, Inc. (225 U.S.P.Q. (BNA) 935 M.D. Tenn. 1984)
See Universal City Studios v. Kamar Industries, Inc.( 217 U.S.P.Q. (BNA) 1165 S.D. Tex 1982)
See DC Comics, Inc. v. Crazy Eddie, Inc. (205 U.S.P.Q. (BNA) 1177 S.D. N.Y. 1979)
See RG Anand v. Delux Films (MANU/SC/0256/1978)
See Twentieth Century Fox Film Corporation v Zee Telefilms Ltd & Ors. (MANU/DE/3094/2012)
See Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc. (150 F.3d 132, 137 2d Cir. 1998)
See Walker v. Time Life Films, Inc. ( 615 F. Supp. 430, 434 n.2 S.D.N.Y. 1985)
See Hamil Am., Inc. v. GFI, Inc. (193 F.3d 92, 102 2d Cir. 1999)
See Carol Barnhart, Inc. v. Econ. Cover Corp. (773 F.2d 411, 422 2d Cir. 1985)
See Jorgensen v. Epic/Sony Records (351 F.3d 46, 56 2d Cir. 2003)
See Kay Berry, Inc. v. Taylor Gifts, Inc. ( 421 F.3d 199, 207–08 3d Cir. 2005)
See Hustler Magazine, Inc. v. Moral Majority, Inc. (606 F.Supp. 1526 C.D. Cal., 1985)
See TCA Television Corp. v. McCollum, (No. 15 Civ. 4325 S.D. N.Y. Dec. 17, 2105)
See Love v. Kwitny (772 F.Supp. 1367 S.D. N.Y., 1989)
See Castle Rock Entertainment, Inc. v. Carol Publ. Group (150 F.3d 132 2d Cir. 1998)
See (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc. (935 F.Supp. 490 S.D. N.Y., 1996)
See Warren Publishing Co. v. Spurlock d/b/a Vanguard Productions (645 F.Supp.2d 402, E.D Pa., 2009)
See Syndicate Press of University of Cambridge v. Kasturi Lal & Sons (2006 32 PTC 487 Del)
See Civic Chandran and Ors. vs. C. Ammini Amma and Ors. (MANU/KE/0675/1996)
Authoured by Dr. Kalyan C. Kankanala –
Chief IP Attorney, BananaIP Counsels (BIP Counsels);
CEO, Invenomics;
Visiting Faculty, NLSIU and IIMB; and
Author and Novelist.
