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Hastings Communications and Entertainment Law Journal

Authors

Sarah Gamblin

Abstract

This note will discuss the current state of protection for jokes and comedy. As it is now, the only protection comics have is self-help, meaning comedians take punishing thefts into their own hands. This note will dive into the reasons why the current legislature and courts refuse to recognize jokes as copyrightable. Specifically, why many believe that jokes to not meet the qualifications of being an expression, as well as the fear that protecting jokes will lead to chilled speech.

Additionally, this note shall discuss the ways jokes could be protected under the current legal scheme, including trademark and state idea theft protection. This note argues why jokes are in fact expressions rather than simply ideas and suggests that ideas expressed in the form of jokes should be protected. A new standard and threshold are offered to accommodate jokes to reduce the risk of chilled speech and hindering other artists from creating their own work without being in fear of infringement.

Lastly, this note will discuss the evolving forms of social media and technology and its effect on comedians and their ability to protect their intellectual property. Right now, social media is the wild west if an artist does not have legal protection for their work. And even if the artist does have protection, there is a very blurry line as to whether the use of those works is infringing or fair use.

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