Re: Aphorisms and Copyright

On 8/21/98, Howard G. Zaharoff <hgz[_at_]buslaw128.com> wrote:
>
> On Wed, August 19, 1998, Bob Stock <bstock[_at_]ucla.edu> wrote:
> >
> > Unfortunately, Foxworthy does not address the copyrightable subject
> > matter issue of the jokes. The defendant in Foxworthy apparently
> > contended: (1) because one of plaintiff's books was a compilation,
> > the registration did not cover the components of the compilation
> > and (2) the jokes were not original to plaintiff. The court
> > found both assertions to be without > merit, but the court never
> > discussed the copyrightability of short jokes.
> >
> > One wonders why. Was it the incompetence of defense counsel, or was
> > there something else going on?
>
> Although you may be technically correct -- the lack of copyrightable
> subject matter was never raised explicitly by the defense -- the case
> may be more germane than it at first appears. In responding to the
> defense of non-originality, the court writes: "...all of the jokes
> copied by the defendants were not only his own ideas, but his own
> expression. His expression clearly evidenced a 'modicum of intellectual
> labor' [quoting Feist]." Since all the jokes at issue were one-liners,
> it suggests that this court was willing to assume that they contained
> copyrightable subject matter (though I admit the issue wasn't put
> squarely before them).

I'm not sure I'd read that much into it. The court may have assumed that, since the jokes were original, the book collecting them contained copyrightable subject matter, and that the T-shirts in question therefore infringed the copyright of the book. (Same argument applies to Foxworthy's TV specials, etc.) If that were the judge's thinking, a sharp defendant would argue fair use based on minimal use of the copyrighted work -- but given recent developments in the 2nd Circuit, I wouldn't be so sure fair use would carry the day.

As someone else pointed out, though, the case may have hinged on a trademark analysis rather than copyright.

Daniel J. Schaeffer
<daniel_schaeffer[_at_]kirkland.com> Received on Fri Aug 21 1998 - 23:42:08 GMT